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 * # * A Catalogue of Law Work* gratis on Application.
 
 W. F. PHILLPO 
 
 9, Old Square, 
 Lincoln's Inn 
 
 A DIGEST 
 
 LAW OF EASEMENTS. 
 
 L. C. INNES, 
 
 I.ATE OF THE IMHAV civtr, BEEVXOE, AXD SOMETIMF. ON'K OF THB JT'i 
 HF.i: MAJESTY'S HIGH 0OUBT OF JUDI0ACT7BE, 1CADBA& 
 
 FOURTH EDITION. 
 
 LONDON : 
 
 STEVENS AND SONS, LIMITED, 
 
 119 & 120, CHANCERY LANE, 
 
 £afo PuMifilurs snb «jooI;:;cIIrrs. 
 
 1893
 
 T 
 Jni5e 
 
 '893 
 
 • OH : 
 ran DB1 •:■■;: wr. I
 
 o 
 h 
 
 PREFACE 
 
 TO THE FOURTH EDITION. 
 
 This Fourth Edition is identical with its im- 
 mediate predecessor in general arrangement. 
 Some few alterations and additions have been 
 made, and some Rules and illustrations added; 
 and the more important cases decided since the 
 publication of the last edition have been noticed 
 under their appropriate heads. 
 
 For greater convenience of reference, the 
 paragraphs have been numbered. In the Table 
 of Cases, the year of decision is set opposite to 
 
 each case. 
 
 I hope that this new edition of my brief 
 Summary of the Law may be found to be an 
 improvement on the preceding one. 
 
 L. C. INNES. 
 
 1 lOVEB. 
 
 January, 1893. 

 
 PEEFACE TO FIRST EDITION 
 
 ri'IiLISHKD IN MADRAS IX 1 J78. 
 
 < )n taking his seat as the Legal member of the Vice- 
 regal Council, Mr. Whitley Stokes announced t lie inten- 
 tion of the Council to take in hand without delay the 
 work of codification, in almost the entire remaining 
 field of law in which codification has not yet been 
 attempted. Among other subjects he mentioned that 
 of Servitudes. 
 
 It occurred to me that in some respects as a guide and 
 in others as the means of pointing out difficulties which, 
 in framing an Indian Code, it would be well to avoid, 
 the completion of a work which I had for some time had 
 in hand — a Digest of the English Law of Easements, a 
 branch of law which is included in the somewhat more 
 comprehensive law of Servitudes — might prove useful 
 as a preliminary step towards the preparation of a 
 ( lhapter of the Indian Code on the subject. 
 
 I have omitted what are called customary Easement?, 
 as they are either not Easements properly so called, or, 
 if Easements, are so by prescription, and not by custom, 
 and are properly classed as Easements by Prescription. 
 
 I have added a Section on Licenses, as is usual in 
 treatises upon Easements. The subject is related to 
 that of Easements, and each tends to throw light upon
 
 VI PREFACE TO FIBST l Dl I ION, 
 
 the other. Rights usually styled rights ex Jun natura 
 axe also tn t< 1 of, though thej are i I Basemen! . 
 
 a >iinil:ir reason. 
 
 There is much in the English law thai might be 
 adopted without miscMef or difficulty in [ndia; as the 
 law relating to Rights of Way, Bupporl "1' Land or 
 Buildings, Air ami Light. 
 
 In regard to Rights of Water with exception of such 
 rights us are styled Rights i jun natur<8 t or as I 
 prefer to tall tin 'in, " Rights arising from situation u 
 pendent of a right <>i' Easemeni "), 1 certainly trust the 
 islature will nol think of adopting the Bn gli wh 
 model. Rights '.'• jure natura are simple ami natural. 
 
 and are incompatible with an exoessiv ■ unfair u><- of 
 
 the object. But Easements in water are of a highly 
 artificial and complex character, ami in a country the 
 welfare of which is, in many province denl 
 
 upon a fair ami even distribution "I water, are lial I 
 
 •. I fear, in greal injury t>> whole communities. 
 The evidence of a Eew falsi in a Court of first 
 
 instance may often become the basi decision i 
 
 individual rights whioh the Appellate Court may m I 
 
 in a position to : ami the level "I the fl 
 
 hitherto flowing to many a villa--- may thus 1 i 
 
 lowered as to deprive large tracts i E land of the accus- 
 tomed overflow, to the ruin of tin- landholders who 
 udent upon it for their livelihood. 
 Tin' irrigation officers in the Madras Presidency are 
 will aware of the mischievous effects arising from the 
 blishment of these rights, but are powerless in the 
 of the •! the ' kmrta of Law, and t
 
 PREFACE TO FIRST EDITION. vn 
 
 recogni/. i and tolerate them however great may bo their 
 inconvenience. 
 
 I am not one of those who persistently deny the 
 
 existen E property in the soil in India to any bm 4 the 
 
 sovereign and the statutory proprietors. ( >n the con- 
 trary,! hold view.- in regard 1" the rights of the ryots 
 in the soil which may seem inconsistent with whal I 
 am about to advocate. Tf, as I believe, they have by 
 the ancient custom of the oountry an emphyteutic title, 
 whioh the British I tovernment lias sometime s recognized, 
 more frequently ignored, but never expiv»ly denied, 
 it may Beem unreasonable thai with so permanenl an 
 interest in the soil they Bhould not be allowed to acquire, 
 over neighbouring tenements, suoh Rights in Water in 
 the nature of Basements as have grown up in England. 
 
 But in India, I think, the well-being of most com- 
 munities points 1" the necessity of great economy in 
 water, and of the regulation of its distribution in the 
 interests of all, in proportions as far as possible adjusted 
 to the exl int of the wants of the lands of each culti- 
 vator; and to allow an individual by the fiction of a 
 grant from his neighbours to acquire the right to dam 
 up, pen back, or divert water, is incompatible with a 
 fair and even distribution. 
 
 The decisions as to Rights in Water in Madras have 
 been few, but have not been unimportant; and some 
 important deoisions are unreported. (See Appendix.) 
 
 They have not covered a very extended portion of the 
 subject, but it is impossible to say how rapidly the 
 notion of rights of easement in water may grow; and 
 it would be well if the Legislature would step in in
 
 Yin PR£FA( !. K) FIB8T EDITION. 
 
 time, and place the Government in such a position in 
 regard to the rivers and streamy serviceable for irriga- 
 tion, as to give it. onoe for all, entire control over the 
 fair and even distribntioD of water. 
 
 I have not added an [ndex, as the Table of Contents 
 • Eramed as to supply the place of ono in bo small a 
 volume. 
 
 The Digest is founded principally upon the treatises 
 tale and Goddard. 1 have quoted mosl of the i 
 which are of more recent dale than the latter work. 
 
 1 trust that the labour (which has not been light) <>t 
 preparing this 1 >igest may not have been altogether 
 thrown away, and that the work may prove of use to 
 the profession and the public.
 
 TABLE OF CONTENTS. 
 
 ▼ 
 
 PAGE 
 
 Pkkiai i: . . 
 
 iii 
 
 TABLB "l ( lONTENTS . . 
 
 ix 
 
 Names of ( 'ases 
 
 XV 
 
 Servitudes 
 
 1,2 
 
 including profits a prendre 
 
 2 
 
 Easements ( general ly) 
 
 lVniinni'iice of tenement required in . . 
 
 2 
 
 2 
 
 by express grant 
 
 public 
 
 2 
 2 
 
 private 
 by implied grant 
 by prescription 
 
 at Common Law 
 
 3 
 
 3 
 
 3 
 
 by Statute Law- 
 
 3 
 
 Application of the terms "dominant" 
 
 
 and " servient " . . 
 
 3 
 
 Kinds of easements 
 
 3, 4 
 
 The use of the dominant holder must be 
 
 
 continuous, or perpetually recurring. . 
 Who may acquire 
 
 Illustrations of 
 
 5 
 5—9 
 6—9 
 
 Acquisition of Easements 
 
 
 by express grant 
 by implied grant 
 Easements arising on severance of tene- 
 
 9 
 9—17 
 
 ments 
 
 11 — 17 
 
 Illustrations . . . . 10, 
 
 12—17 
 
 Acquisition of Easements r.v PaEscarPTioa 
 
 17—11
 
 CONTENTS. 
 
 1 •: '. I.wv 
 
 What it 
 
 For \\ bat \ • riod user must have been had 
 [n what oases there cannol be prescrip- 
 tion at ( lommon Law 
 
 Illustrations 
 
 1 '. .-•• enta of lighl and water, how re 
 strioted . . 
 
 of the suspension of user tem- 
 porarily by agreement 
 
 Prescription ukdeb the Pbesi riptiok a 
 
 An Action essentia] to acquisition "t" 
 
 right 
 W'liat easements ran be acquired 
 Nature of enjoyment required 
 In whose name claim may 1><' mad'' 
 Extent of enjoyment require d 
 "Without interruption," meaning of i 
 Tabulated opinions of the judges in 
 
 l)ul tun v. . I in/ us 
 
 "As of right," meaning of . . 
 What are aot interruptions under ti. 
 Submission, how negatived . . 
 I low claim may be defeated . . 
 Presumption bom enjoyment of forty 
 its .. 
 
 in in the « ass of a i laim to an 
 tnent of light 
 Effect of fluctuating interruption 
 •■.\< cess of light," meaning 
 2nd Set tion 
 
 3rd 8< i tion and Illustration . . 
 4th Section and Illustration . . 
 7th Section and Dlustrations.. 
 8th Set ti'in and Dlustrations. . 
 Win re interr up tion of enjoyment by n a 
 :. • has not b< en possible. 
 
 PAOE 
 
 17 
 17, is 
 
 is, 19 
 
 20, 21 
 
 21, - 
 
 
 
 28- 
 
 il 
 
 
 
 
 
 
 2 1 
 
 
 25 
 
 
 25 
 
 
 
 
 
 
 30 
 
 
 
 
 
 31 
 
 
 33 
 34 
 34 
 
 . • 
 
 35—37 
 35—38
 
 CONTENTS. 
 
 XI 
 
 PAGE 
 
 PiiEscuirriox r.\i»KR Tin: Pkesciupton A< t — contd. 
 Iii« apacity of servient owner, how affect- 
 ing acquisition . . . . . . '•'>'■), 1 (> 
 
 Meaning of "actually enjoyed by any 
 
 person claiming righl thereto" in 'J ml 
 Section . . . . . . . . '10, II 
 
 Of natural rights, and rights in ease- 
 ments . . . . . . • • 41 — 69 
 
 Watek — Rights ex jure naiura in . . . . -12 — 17 
 
 Those rights exisl only in natural streams 12, 13 
 
 Natural right to accustomed How . . 43, 1 1 
 to purity of water in na- 
 
 tur.il streams . . 45 
 
 in artificial do.. . . . 15 
 
 to get rid of or appropriate 
 
 Burface water . . -10, 17 
 
 Easements in .. .. .. 47 — 51 
 
 Eight to obstrucl and divert . . . . 19 
 
 polluto . . . . . . 50 
 
 Way— Eights of .. .. .. .. 51 
 
 Public rights of . . . . 51 
 
 Private rights of . . . . -31 — 5S 
 
 To whom they appertain, and for what 
 
 purpose . . . . . . . . 51 
 
 Extent of easement of — as to purpose or 
 
 period, or mode of user . . . . 52, 53 
 
 Eights of — by express grant. . . . 53 
 
 implied do. . . . . 5 1 
 
 Distribution of right of — on severance of 
 
 tenement to which it is appurtenant. . 5 1 
 
 Conveniences of — which had been used 
 between two portions of the same tene- 
 ment, would not, prior to the Convey- 
 ancing Act of 1881, on severance pass 
 to vendee unless they were necessary, 
 or unless it was expressed that they 
 were intended to be conveyed. Effect 
 of the Act . . . . . . 54
 
 Ml CONTEXTS. 
 
 
 W )>ti)iU(iI. 
 
 Winn a w.iy • : tv is implied 
 
 nut implied 
 
 through tenement <>f a stranger . . 56 
 
 Right of \\ hen impliedly i . . 
 
 Where right <>f le rendered incapable 
 
 of use by the act of the grantor . . 67 
 
 \ icquisition ia possible of private right 
 
 over public roaid . . . . 57 
 
 An; — Natural right to uninterrupted flow >>i . . 58 
 
 to receive \ ertically 
 to free enjoyment and use of 
 
 air received . . . . 58 
 
 Right to purity of— independent of ease- 
 ent 
 
 Qualifications of natural right to purity 
 
 of air . . . . . . . . us 
 
 Easements in air . . 
 
 SuFPOBi Natural right t" Buppozi of one'fl land 
 
 by the adjacent land . . . . 60 
 
 •it of this right 1" fore and after 
 erection of buildn . . . . 61 
 
 Basement of— of buildings by adjacent 
 
 soil must be by grant or prescription . . 62, 
 In'^ht uf easement of of buildings by 
 soil, and <>i' buildings by buildings, in 
 what ly I"- implied . . 82, 
 
 In al tighi of -tin i'' may I 
 
 duty to tak<> cam in removing a con- 
 tiguous building . . . . . . 8 i 
 
 No extension of obligation of, in favour 
 of one who li as contributed to the sub- 
 siil. oi e of bis "^ d buildings . . 84 
 
 I. . . . . . . . . . ..65—69 
 
 iral ri,u r l't to arising by situation. . 
 
 I \ ertically . . 
 
 Lab rally . .
 
 CONTENTS. 
 
 Mil 
 
 Light — continued. 
 
 Easement of, \\ bat ii 01 insists Is 
 l - ments of, by express granl 
 by implied grant 
 by prescript Ion 
 
 Liability of tenants for obstructing 
 K\ 1 1:\ i OF CTBSB OP Easeu i:.\T3 
 
 partly in conflict 
 
 w ith statute 
 by deed. . 
 
 for general purposes 
 Distribution of, on 
 severance of tene- 
 ment 
 
 of right of way 
 
 by prescription, ex- 
 tent of right, liov,- determined 
 
 [notdents of Easements 
 
 Extinguishment of Easements 
 
 by Act of Parliament 
 
 by express release 
 merger 
 
 cessation of purpose 
 cessation of necessity 
 alteration of mode of enjoy- 
 ment 
 
 necessary consequence of act 
 
 of the dominant owner . . 
 
 abandonment 
 
 Disturbance of Eights arising by Situation and 
 
 of Eights of Easement 
 
 The nature of rights to transmit impure air, 
 
 impure water, 
 
 disagreeable noises, 
 
 into tho adjacent property 
 
 What acts are obstructions of natural rights 
 
 disturbances of easements . . 
 
 i. b 
 
 IW'.I. 
 
 
 1 
 
 
 66 
 
 GO 
 
 ,07 
 
 67- 
 
 -69 
 
 
 69 
 
 
 69 
 
 
 69 
 
 
 70 
 
 
 70 
 
 70 ; 
 
 71 
 72 
 
 72- 
 
 -76 
 
 76, 
 
 77 
 
 77- 
 
 -89 
 
 
 80 
 
 80- 
 
 B2 
 
 82, 
 
 83 
 
 
 83 
 
 83— 8"> 
 
 8.-> 
 85—89 
 
 89 94 
 
 90—92 
 
 92, 93
 
 MY 
 
 CON I IN I S. 
 
 Disturbances Of natural rights or Eights • 
 
 men! are actionable without showing special 
 damage 
 
 When right of action accrues to rever- 
 
 • . . . . . . . B i 
 
 MA. 11 Y . . .. .. .. 96—101 
 
 of dominant owner to aoquibi an i 
 
 ment . . . . . . . . 95 — 97 
 
 of servient owner to ohabt an easement 97 — 101 
 • of servient owner's incapacity to 
 
 consent . . 
 Non-efTect of this in the ease of LIGHT. . 
 Incapacity subsequent to tho starting 
 
 point f'»r the prescriptive period <loes 
 
 not rebnl presumption . . . . 99 
 
 When during the nsi r resistance lias 
 
 been impossible, ;i grant cannot be 
 
 presumed . . . . . . 100 
 
 unless there has been subsequent consent 100 
 
 so, also, if there has been no knowh dge 
 
 of the u- t . . . . . . 101 
 
 This does not apply to Light .. 101 
 
 Or Licenses— How ,-i license is distinguished from 
 an easemenl 
 What a lioense as to personal thh 
 When a parol license is void 
 A parol lioense is count* rmandable 
 
 ! options 1 
 
 • > 
 
 Though executed, oountermandable in 
 
 other cases 
 
 LOS 
 102 
 L09 
 103 
 103 
 103—105 
 
 105, 106 
 
 INDEX 
 
 107
 
 NAMES OF CASES CITED. 
 
 Ackroyd v. Smith (1»50) 
 Aldred's Case (1738) 
 Allen v. Allen (1841) 
 
 Allen r. Taylor (1880) 
 Angus, Daltonr. (1881) 
 
 5, 7, 17, 18, 19, 23, 24, 
 
 Arkwrigkt v. Gell (1839) . . . . 2, 21, 
 
 Arnold r. Jefferson (1697) 
 
 Attorney-General v. Corporation of Plymouth 
 [1846) 
 
 Bailey v. Icke (1891) 
 
 Ballard v. Dyson (1808) 
 
 Ballard v. Tomlinson (1885) 
 
 Bamford v. Turnley (1860) 
 
 Barkshiro v. Grabb (1881) 
 
 Barlow v. Bhodes (1833) 
 
 Barlow v. Boss (1890) 
 
 Bass r. Gregory (1890) 
 
 Bayley v. Great Western Bail. Co. (188-1) 
 
 Bealey v. Shaw (1805) 
 
 Beddington v. Atlee (1887) 
 
 Beeston v. Weate (1856) 
 
 Bewky v. Atkinson (1879) 
 
 Birmingham, Dudley and 1 >istriet Banking Co. 
 
 Boss (1888) .. 
 Blackett v. Bradley (18G2) . . 
 
 I'A IB 
 
 7 
 
 7, 58 
 
 97 
 
 67 
 
 30, 61, 
 
 63, 66 
 
 39, 49 
 
 69 
 
 67 
 
 45, 
 
 91 
 
 58, 
 
 92 
 
 
 5 ■') 
 
 
 ").") 
 
 
 7S 
 
 59, 
 
 60 
 
 
 
 
 50 
 
 
 9 
 
 
 48 
 
 
 33 
 
 
 67 
 
 20, 
 
 38
 
 XVI 
 
 NAM 1-3 OF < AH - I I I 1 ID. 
 
 hard p. Bridges 1855) . . 
 Bland >. Hoeely I 
 p. Ball 
 are. On • w '• tarn Rail, do. 1888 
 
 Bonoini r. P>a<klmus.' (1N.VJ).. 
 
 Booth p. Aloook 1878 
 Bower p. Hill (18! 
 
 ry a Po] 1587).. 
 
 Bradburn p. Morris 1876) 
 
 .11. cut r. Ramsbotham (1856) 
 Brown p. Alabaster 1887) . . 
 
 Chadwict p. Trower 1839) . . 
 Chambres Colliery Co. p. H«>pwood (1886) 
 Chandler p. Thompson (1811) 
 Chasemore p. Richards [1859) 
 ( 'lark.- p. Somersetshire 1 hainago Comrnrs. (1888) 
 Clayton p. Corby 1842 
 Clifford p. Eoare (1874) 
 I iwper 1884) 
 Codling e. Johnson 1829 .. 
 Colchester p. Roberts 1839) .. 
 Collins p. Blade 1874 
 
 stable p. Ni< bobon lMi.'S) 
 Cooper p. Orabtree 1882) .. 
 Cooper p. Straker 1889) 
 Coppey p. J. '1- B; l 196) .. 
 Corbett p. Mill 1*70) 
 
 < lornish p. Abington (1859) . . 
 Coul rham L829 
 Cowling p. Higgineon 1888). . 
 
 iley p. Lighted ler 1867) 
 
 < Irump p. Lambert 1 1 B67) 
 
 7 1 
 
 81, 
 
 7 
 92 
 
 
 86 
 
 
 
 64, 
 
 71 
 
 
 
 
 72 
 
 18, 
 
 16 
 
 
 16 
 
 
 til 
 
 
 6 
 
 
 71 
 
 
 1 1 
 
 
 84 
 87 
 
 
 103 
 
 54 
 
 71 
 
 
 58 
 
 
 7o 
 
 
 
 
 94 
 
 
 
 
 18 
 
 
 
 
 B8 
 
 
 
 
 62 
 
 78 
 
 
 58 

 
 NAMES OF CASES CITED. 
 
 Wll 
 
 I > ilt. .11 r. Angua (1881) 5, 7, 17, 18, 19, 28, 24, 80, 81, 
 
 I >umo Brown's Case, Moure r. Brown (1.372) 
 Daviea v. Sear (1869) 
 Dodd v. Bun hell (18G2) 
 
 1W r. Hildfi- (1819) 
 
 Doe v. Wood (1810) 
 Dyers' Oo. v. King (1870) 
 
 Elliotson v. Feetham and Anotlior (183.3] 
 Ellis r. Mayor of Bridgnorth (1863) . . 
 Embrey v. I >wen [1851 
 
 Fentiman v. Smith (1803) 
 l'inliiisoii r. Porter 1 1875) 
 
 Jit v. Thomas (1841) 
 I' rlers >-. Walker (1881) 
 Foxall r. Venables (1.390) 
 Francis v. Eayward (1882) 
 Frewen v. Phillips (1861) 
 
 Gateward's Case (1607) 
 Gaved v. Martyn 1865) 
 Gayford v. Moffatt (1868) 
 
 Geogheghan o. Fegnn (1872) 
 
 Glover v. Coleman (1871) 
 
 Goldsmid v. Tunbridge Wells Improvement Com 
 
 missioners (1866) 
 Goodhart v. Byett (1883) 
 Greatrex v. Hayward (18.33) 
 
 Hall v. Lichfield Brewery Co. (1880) . . 
 Hall v. Swift (1838) 
 
 
 16 
 
 
 .06 
 
 
 55 
 
 
 89 
 
 
 104 
 
 
 69 
 
 60, 91 
 
 92 
 
 •12 
 
 j 
 13 
 
 
 103 
 
 
 70 
 
 37 
 
 60 
 
 70 
 
 87 
 
 . 10 
 
 G 
 
 12 
 
 
 8 
 
 
 6 
 
 . 47, 
 
 19 
 
 
 
 
 5 5 
 
 
 30 
 
 51, 
 
 73 
 
 ""> 
 
 93 
 
 
 49 
 
 
 
 . 30, 
 
 89
 
 win NAMES OF < USES CITED. 
 
 Harbidge v. Warwick (1849) 
 
 Harris v. De Pinna (1886) .. .. .. 8 1 
 
 Harris r. fy£ag | .. .. .. 60 
 
 Hawkmi ,-. Oarbinee 1868) .. . . . . 67, 73 
 
 Helena (St' Smelting Oo. ». Tipping (18GG) . . 
 Banning 9. Burnet v ls.'>2) . . . . . . v i 
 
 Hewlina ;•. Bhipham 1826) .. .. .. 10 8 
 
 Hodgkanson v. Ennoi 0« SG3 )- • • • • • ' '' 
 
 Hole r. Barlow 1868 
 
 Holier 9. Porritl (187o) .. .. .. 60 
 
 Ilollins v. Verney (1881) 
 
 Holmes 9. Buckley J<'-'Jl) .. 
 
 I [olmea 9. < loring [1824) 
 
 Humphreys v. Brogden (1848) 
 
 Hunt v. Peake (1860) .. .. •• 60 
 
 James v. Plant (1886) 
 
 Jesser v. Gifford (1767) 
 
 Johnson r. Pate (1884) . . . . . . 1 1 
 
 Jones 9. Powel L629) .. .. .. '-'I 
 
 Kay 9. Oxley 1875 
 
 K.-n-it e. Greal Eastern Railway Co. i ss ' .. '■'' 
 
 Keppel 9. Baily v ls3:i) . . . . .. 7 
 
 Kidgill v. Moor (1860 .. .. .. '•" 
 
 King, f l'li" 9. 'ill" [nhabitanta <»f Horndon-on-the- 
 
 Hill(1816) .. .. .. •• 106 
 
 _s (1881) 
 Lemaitn . 1 1 11 \t 1 ss i 
 
 ! 
 
 11 p.Smith 1 
 
 penter (1851 
 
 86 
 
 . . 2 
 B5, mi. 106 
 
 ...
 
 NAMES OF CASES CITED. 
 
 xix 
 
 Ifaberly v. Dowson (1827) 
 
 Manure (National Guaranteed) Co. v. Donald 
 
 (1859) 
 Mason v. Hill (1833) 
 
 Ifedway .Navigation Co. v. Earl of Komney (1861 
 Metropolitan Association v. Fetch (1858) 
 Mitchell v. Oantrill (1887) .. 
 Mitchell v. Darloy Main Colliery Co. (1884) 
 Moore v. Brown (1572) 
 Mooro v. Bawson (1821) 
 Moulton v. Camroux (1819) . . 
 Mounsey v. Ismay (I860) 
 Murgatroid v. Robinson (1857) 
 Myers v. < 'atterson (1890) 
 
 83 
 50 
 
 12 
 
 94 
 
 8, 33 
 
 61, 62 
 
 16 
 
 86, 89 
 
 96, 98 
 
 6 
 
 39 
 
 66 
 
 National Guaranteed Manure Co. v. Donald (1859) 83 
 
 Norbury v. Meade and Others (1821) . . . . 89 
 
 Oldfield's Case . . . . . . . . 56 
 
 Ormerod v. Todmorton Joint Stock Mill Co. (1883) 17 
 
 Outram r. Maude (1881) .. .. .. 5 
 
 Palmer v. Paul (1824) 
 
 Payne r. Sneddon (1834) 
 Pearson v. Spencer (1861) 
 Pendarves v. Monro (1892) . 
 Penruddock's Case (1598) . 
 Perry v. Eames (1891) 
 Phillips v. Low (1892) 
 Pickard 0. Bears (1837) 
 Pinnington v. Galland (1853) 
 Plummer v. "Webb (1627) 
 Poldon v. Bastard (1863) 
 
 66 
 22, 59 
 
 55, 5 7 
 87 
 91 
 23 
 66 
 88 
 56 
 104 
 11
 
 \\ 
 
 NAMES OF (AM 8 CITED. 
 
 on-th.-Hill 1816) 
 
 Potl Bmith 18< 
 Powell v. Butler 1871 
 Prealand v. Bingham ' 
 
 lv r v. Cari. r 1857) 
 
 Queen v. Chorley I 
 
 Rav* stron i . Taylor (1855) 
 1: gina v. Ohorley 1848 
 Reynolds v. Edwards 1 7 12 
 
 [nhabitanta of I Eorndon 
 Richards v. Pry 1888 
 Richards >■. Rose l 
 Rigby /. Bennett (1882) 
 Roberts v. Macord (1832] 
 Roberts v. Richards (1882 
 Robins e?. A brewer. . 
 Robinson v. < heave 1 878) 
 Rogers v. Taylor 1857 
 Rowbotham v. Wilson (I860) 
 Russell v. Watts and others (1883) 
 
 Sampson r. Hoddinott (1857) 
 
 Baxby v. The Manchester, Sheffield and 1 
 
 shir" Railway ' lompany i 
 Scott r. Pape L886 
 Belby v. Nettlefold 1874 
 
 \.t..n Local Board I 
 Simp r v. 1 '•■!■;. I 
 Simpson v. $a,\ age 1 856) 
 Skull v. Qlenister 181 
 Smart p. Morton l 
 Solomon v. Vintni i I B59 
 
 TAOR 
 
 21 
 
 IS 
 
 1 I, 15 
 
 22, 16, is 
 
 _' 2 
 106 
 
 • I 
 I i 
 21 
 ll 
 91 
 17 
 30. 68 
 
 I 7 
 ll. 91, 
 
 91 
 B7 
 
 '.'i 
 
 I Q 
 21
 
 NAMES OP CASES CITED. 
 
 \\i 
 
 tu v. De Eeld 1851) 
 Some v. Barwish ^1610) 
 
 St. Hi Lena Smelting Company v. Tipping (18GG) 
 Stockporl and Hyde Highway Board v. Grant 
 
 (1S82) 
 Stockport Water Works Company v. Potter 
 
 (1882) 
 Stokoo v. Singers (1857) 
 Sturges v. Bridgmaa (1879) . . 
 Suffield t>. Brown (1868) 
 Snry v. Tigott (1625) 
 Swindon Water Works Company v. Wilts and 
 
 Berks Canal Navigation Co. (1875) 
 Symone v. Leaker (1885) 
 
 paob 
 92 
 
 '.H 
 i8. 59 
 
 50, 92 
 
 88 
 
 90 
 
 15, 56 
 
 15, 82 
 
 12 
 3G 
 
 Tapling v. Jones (1865) 
 
 Taylor v. Waters (1817) 
 
 Taws v. Knowles (1891) 
 
 Thomas v. Owen (1887) 
 
 Thomas v. Sorrell (1G79) 
 
 Tickle v. Brown (1836) 
 
 Tipping v. St. Helens Smelting Co. (1866) 
 
 Tone v. Preston (1883) 
 
 Turner v. Spooner (18G1) 
 
 33, GG, 7 1, 75, ~G 
 10G 
 14 
 12 
 102 
 40 
 58 
 41 
 71 
 
 United Land Company v. Great Eastern Eailway 
 (1878) 
 
 Wakefield v. Duke of Bucclench (18G7) 
 Walter v. Selfe (1851) 
 Ward v. Ward (1852) 
 
 Watson v. Troughton (1883). . 
 Watts v. Kelson (1870) 
 i. 
 
 70, 72 
 
 61 
 
 89 
 12 
 15
 
 \.\11 
 
 N \M1 > OF CASES CITED. 
 
 Webb r. Bird 181 
 
 Webb p. Paternoster 1620 
 
 Whaley p. Laing 
 
 Whalley p. Lancashire and Yorkshire Railway 
 
 Company 1884 
 Whalley p. Thompson 1799) 
 Wheeldon p. ! l B79) 
 
 Wilson r. Queen'a Club L8 
 Wimbledon and I'litm-v Commons Conservators 
 
 m L875 .. 
 Winter p. BrockweU 1807 
 
 W 1 '■• Lake 1 751 
 
 W 1 p. Leadbitter IS 
 
 Wood p. Manley 1839) 
 
 Wood p. Saunders L875 
 
 Wood p. Waud 1849 
 
 Woodyer p. Eaddon L81 I 
 
 Wright b. Boward 1823 . . 13, 
 
 Wrighl p. Williams 1836) 
 
 Wyatt p. Ean 
 
 Zouch p. I ' .: infi 
 
 TAOE 
 I, 59 
 
 104, 106 
 
 15 
 
 46. is 
 
 11, 15 
 
 105, 106 
 
 102, l«':; 
 
 104, 106 
 
 70 
 
 45, 82 
 
 52 
 
 11. 50, '.'1
 
 DIGEST 
 
 OF 
 
 THE LAW OF EASEMENTS. 
 
 5$ 1. The Law of Easements is a branch of 
 the Law of Servitudes, or rights in aUena solo. 
 Servitudes may be defined as follows: — 
 A right of servitude is a right bv which a 
 person, by virtue of his interest in a certain 
 tenement, is entitled to claim 1))' way of advan- 
 tage or convenience to his tenement that the 
 possessor of a neighbouring tenement shall sub- 
 mit to something being done by him affecting 
 such neighbouring tenement, or shall forbear 
 from doing something on such neighbouring 
 tenement. 
 
 Servitudes may be servitudes with a right to 
 make a profit out of the substance of the neigh- 
 bouring tenement; as a right to take turf, or 
 dig for minerals. 
 
 These are called Profits a prendre. 
 
 Or they may be servitudes without such a 
 
 I. B
 
 2 DIGEST OP THE LAW OP BASEMEN rS. 
 
 ricrht, and with simply the ricrhl t<> claim sub- 
 mission or forbearance. 
 
 These arc called Easements. 
 
 The presenl work does not treal of Profits 
 j) prendti . 
 
 < )r EASEMENTS < i-ENEBALLY. 
 
 S 2. [n the case of easements the tenement in 
 respect of which the advantage or convenience 
 is claimed, ami the advantage or convenience 
 
 which La tin' object of the claim, must both 
 have a permanent existence, or an existence 
 
 which is intended to continue for a defined 
 
 term. 1 
 
 TUtutration. 
 
 A Imilds a workshop in front <>f his house. It is built upon 
 which are fixed in stone plinths, and these rest <>n some 
 alight brickwork. The purpose of it was temporary, and it is 
 not fixed to the freehold. The shop has windows which ret 
 light from the tenement o! B. Notwithstanding the temporary 
 character oi the structure it- existence is continued for 20 j ■ 
 B at length builds bo as to obstruct the light ooming t-> A.'a -li"i> 
 windows. En consequence oi the temporary character of the 
 .structure, an easement oi light cannot be acquired, and an action 
 A against B fails. 
 
 S 3. The rights called Easements may come 
 into existence in several ways. 
 
 (1.) By express public granl bj an Act of the 
 Legislature. 
 
 )/ ■ . . /' . ". I .. .1. K. B. 261. 
 
 i M. & \\ . 203 ; 8L. J. ■ 201.
 
 DIGEST OP THE LAW OP EASEME1 3 
 
 (2.) By express private grant, 
 
 (a) inter vivos. 
 
 (b) by testament. 
 
 (3.) By implied grant, when the intention is 
 implied to grant the easement together with 
 property which is expressly granted : — 
 
 as on a severance of tenement. 
 
 (4.) By prescription, which requires enjoy- 
 ment as of right for a particular period. 
 
 Prescription is either by (a) Common Law, 
 or by (b) Statute. 
 
 The tenement in respect of which the owner 
 enjoys the easement over the other is called the 
 dominant tenement. That over which the ease- 
 ment is enjoyed is called the servient tenement. 
 
 § 4. Easements are 
 
 Positive or Affirmative, — Such as authorize 
 the commission by the dominant owner of 
 acts which invade the right of the servient 
 owner (a). 
 
 Negative, — When the owner of the servient 
 tenement is restricted in the exercise of the 
 natural rights of property by the existence of 
 the casement (b). 
 
 Continuous. — Of which the enjoyment is or 
 may be continual without the interference of 
 man (c). 
 
 b 2
 
 1 DI0ES1 OF i hi: LA\H OF BASEM1 N r8. 
 
 Discontinuous. The enjoyment of which can 
 only be had by a fresh aoi on each occasion of 
 the exercise of the right (d ). 
 
 Apparent. — With externa] signs of exist 
 ence(tf). 
 
 Non - apparent - -Without such external 
 rfgns(/). 
 
 lUustratv 
 \ -hi o! w.:y over B'a land. 
 
 A ha- a right to discharge, water into B'a Land. 
 . A haying ancient windows giving access "t' Light t«» his 
 m B'a land, I'- is restricted in hi* right to build <>n his 
 .i„l |o a- :.. obstruct the Light i>a--in.Lr to A'.- windows. 
 (c) A having ancient windows enjoys a right t<> light h 
 
 \\v land Of B. 
 
 A . ojoya a right to the passage <>f rain water by a gutter h 
 hi- house along the house of B. 
 
 • (</.) A ha- a right Ol way ..v. r B'a ground. 
 
 A ha- a right t<> divert water flowing to B'a land. 
 
 .. A baa a righl to pass through a door on \>'- pn i 
 by a path beyond it, to get to his own linn—. 
 
 A ha- a right oi access of Light tohia house through hisancienl 
 i indowa from tin' Lands "t 1'.. 
 
 A baa a right t<> dam up a watercourse on hi- own Land« 
 
 below tin- land- "1 I'.. 
 
 In these rights there exist the external signs of the door, the 
 path, thr -. nd the watercourse. 
 
 \ baa an ancient building bordering on tin- boundary 
 
 bia land and that 01 B, and hi- a. pill . 'a.-nt 
 
 t ,,,;, irtol bia land weighted with the building by 
 
 H'< land, H< re tip- right, which i- a righl i \ to oontinue t<> 
 
 his building on the support afforded 1 
 l.,,,,l, and to i ti I B bom removing the Lateral support 
 
 led b)' hi- land. . a la .]i-a]']>al 'lit < a-< Ilifllt . 
 
 ^5. Some Easements present both positive and
 
 DIGEST OF Tin: LAW OF BASEM1 ■ i 3. •» 
 
 negative characteristics, as iritne last illustration, 
 in which the easement is enjoyed by the thrusl 
 upon l>\s land arising out of the continuing 
 consequences of the original ad of A in weight- 
 in «_»- his land with buildings, and the abstention 
 of B from interfering with his own land in a 
 way to remove the support it has hitherto 
 afforded to A's building. 1 
 
 § 6. The terms of the grant, or the circum- 
 stances from which it is to bo inferred, must 
 
 express or imply continued use, or use perpetu- 
 ally recurring, though at uncertain intervals. 
 
 § 7. For the purpose of acquiring an ease- 
 ment the possession of a tenant is that of his 
 landlord. 
 
 A tenant cannot therefore acquire an ease- 
 ment for himself by prescription against his 
 own landlord, or, except in the case of light, 
 against a tenant of his own or of another 
 landlord. 2 
 
 1 Bee Dalton v. Angue, p. '2~>, intra, and tho opinion- 
 Lord Selborno (Chancellor), and Lord Watson, and of Lin 
 and liowen, JJ., in that case. 
 
 - Gat/ford v. Moffatt, L. 11. A Ohy. 1 33. 
 Outran v. Maude, 17 Oh. Diy. 391 ; .30 L. J. Oh. 783 ; 
 
 29 \Y. B. 818. 
 Cltambre CoUiery ('v. v. Hopwood, L. B. 32 Oh. 1>. 549 ; 
 
 55 L. J. 11. Oh. 859.
 
 C DIG] -i OP i BE i.wv OF BA8EKJ N I "8. 
 
 § 8. The interest In property, over which an 
 occupant of neighbouring property may hy <x- 
 mt acquire an easement, is nol requin d 
 to l>e the entire interest. 
 
 Illustration. 
 ('/.) A being owner of oertain premiaee lets them to B tor 
 twenty-01 ithattlighU, \ at this tim«- iimlor-loaaee 
 of adjoining premiaee tor ■ term oJ which low remain 
 
 am spired. Daring the term af A"s anderleaae B has an i 
 ment of Light to hi- premiaee tram th>>- loapied by A. 1 
 
 § 9. With tlic exception noted below in the 
 case of light, a tenant cannot by prescription 
 acquire for himself an easement over a neigh- 
 bouring tenement, but he may bo acquire such 
 a right on behalf of his landlord. 
 
 ^ 10. An easement can only be acquired by 
 a person; not a congeries of persons. 
 
 Several joint owners of property form in 
 respect of that property a person. 
 
 A corporation is a person. Variable bodies 
 of individuals, such as the inhabitants of a 
 village, or parishioners of a parish, are not 
 persons, and cannot prescribe for a right of 
 easement, but can only claim l>v custom. 1 
 
 1 Booth v. J . \.. B, 8 Oh. 668; 12 I.. J. < 1>. M7, 
 . 60. 
 
 /'■ ■■ ■ ■ Oro, ESlia. I s ". 
 
 • / v. 8 II. a I '. 186 : •! L. •'. Bxoh. 52. 
 ' ' . '■ 14 C. B. w. L. J. C. P. 240.
 
 DIGEST OF THE i.wv OP BASEMENTS. 7 
 
 Illustrations. 
 (/'.) A hae a right to a passage tor the rainwater full i 1 1 _' upon 
 his house by a gutter passing from his house over the house of 
 B adjoining. 
 
 (c.) A, a riparian proprietor, has acquired a right to dam up 
 tin' stream, by which the land of li above the property of A is 
 
 occasionally flooded ; and the mill of below the property of A 
 
 receives less water than it otherwise would do. 
 
 The right of A in each of the- above two instances is an ease- 
 ment. 
 
 (</.) A has a houso with several windows opening upon the 
 ground of B, and receiving light from that direction; and A lias 
 been receiving light through these windows uninterruptedly for 
 tho period prescribed by tho Statuto to entitle him to an ease- 
 ment of light. A has acquired an easement of bight over B's 
 tenement, and B La precluded from building on his ground in 
 such a position as to obstruct the passage to A's house of tho 
 usual amount of light. 
 
 Explanation. — A right of prospect cannot be 
 acquired. 1 
 
 In the case in illustration (d) 13 may build 
 
 so as to obstruct the view from A's house, though 
 he must not build so as to obstruct the light. 
 
 ('.) A dams up a stream for the period required to enable him 
 to aeqirire a prescriptive right ; and during that period a portion 
 of the tenement of B higher up is in consequence constantly 
 flooded. But a portion of A's ground is also flooded from tho 
 samo causes, and A has so acted with tho object not of benefiting 
 his own tenement, which in fact ho has not benefited, but 
 of enabling C, a relation on the opposite side of the stream, to 
 work a mill on property not belonging to A.- 
 
 1 Bland v. Mbseley, cited in Aldred's Case, it Coke Rep. 58 b. 
 
 See Daltvit v. Angus, 6 App. Ca. (H. L.) p. 823. 
 
 2 Keppel v. Baily, 2 Myl. & K. 535. 
 
 Ackroyd v. Smith, 10 C. B. 1(54 ; 19 L. J. C. P. 315. 
 Ellis v. Mayor of Bridgnorth, 15 C. B. n. s. 52 ; 
 
 32 L. J. C. P. 273,
 
 s DIGEST OP i in: i.wv OP EA8EMJ \ rs, 
 
 A bai ■ ■ aoquired an ftamwnnnf t<> dam up the stream. 
 
 (/.) A i* a tenant <>f B, and oooupiee I djoiningother 
 
 land oi B. A. cannot by preaoription acquire an easement 
 tin- adjoining land of B, but he may by ezpreea grant bom 1. 
 acquire a right, which though not an easement is in the n . 
 of an ee 
 
 v< 11. For iIk- purpose of acquiring Basements 
 of Light, by prescription under the Prescription 
 Act. sect. 3, holders of leaseholds of houses are, 
 as againsi other leaseholders of houses of the 
 same or different Lessors, regarded as holding 
 separate tenements in resped of which they 
 can, as againsi each other, acquire rights in the 
 nature of easements of light for the term of their 
 several holdings. 
 
 Illustration. 
 
 A and B occupy opposite houses, the property of their lesei 
 A can acquire against B, by prescription, a righl [to enure 
 during the term oJ his tenancy) that B shall not obstruct the 
 light ] M<-iiiLT from B'e to hu housi 
 
 A - to I at expiry of the right at the determination of the L 
 see Bcddington v. .1^/". 
 
 In that ■ ase B ; ae of two plots, <>f the 
 
 <itli<T oi which A v.i- in equity the prior vendee. B'a plot 
 had a house on it with windows overlooking the grounds sold 
 to A. This had been previously L twenty-on 
 
 II, whose lease bad not expired at the dated the sale to B> 
 II had enjoyed the light for several years, but B, after the 
 to him, recovered judgment againsi II to enforoe a oon- 
 
 I v. dfoffatt, I., l:. i Ohy. App. 1 33. 
 
 • / ip$, 11 0. B. n. . ii'. 80 I.. .1. I . I". ■ 
 
 .1/.' '■■■ tv. ( i Urill, A.pp. I.. I:. :.: Oh. D. I 
 
 57 !.. .1. B. Chanc. 7-'.
 
 DIGEST OF Tin: law OF BASEMENTS. 9 
 
 Uitinu ill' re-entry contained in 11'- lease, and ill" 1' iae< i 
 an end. B brought an action for an injunction to restraint 
 Erom building so as to obstruct the windows; lmt it was held, 
 first, thai the Bale to A being La equity prior to that to B, 1'. 
 had in) implied grant to the easement of lighl ; and secondly, 
 that B could not avail himself of tin- enjoyment of the 
 lighl by 11, wim-i' righl a- against his Landlord in that r> 
 ■ 1 away with the determination of the Lease. 1 
 
 1 Si 2. — Of Easements by Expeess Grant. 
 
 § 12. The rights in such easements, whether 
 
 created by an Act of the Legislature or other- 
 wise, depend on the terms of the grant, ami 
 aeed not be treated of here. 
 
 Easements by express private grant, except 
 lty testament, can in England be only created 
 by instruments under seal (as in the case of all 
 incorporeal hereditaments). 
 
 'J. — Of Easements by Implied Grant. 
 
 § 13. Easements by implied grant arise upon 
 severance of a tenement by the owner. 
 
 A man cannot have an easement in his own 
 property, whereby, daring unity of possession, 
 <>ne portion of it is servient to another. 
 
 TUiutn&i 
 
 A has an enclosure in which are two houses ; and a way passes 
 from one to the other, which is convenient for the enjoyment of 
 
 1 Beddington y. AUee, L. R. 35 Ch.D. 317 ; 
 
 56 L. J. B. Ohanc. 665. 
 B 5
 
 10 DIGEST OP THE LAW OF BACD SCENTS. 
 
 both tenemental During A 1 a of tin- entire pea 
 
 the one tenement is not wiid t<» !><• servient t<> the other. 
 
 The owner cannol therefore Bubjecl one pari 
 of his property to another by an easement; but, 
 by the genera] righl of property, he can make 
 one pari of it dependenl <>n another, and granl 
 thai pari with this dependence to another 
 I » * lM. n. 1 
 
 lUtutration. 
 
 There wee en entry with gateway throngb the front wall of 
 two adjoining houses b :t street, toaoourt andbusiuees pre- 
 mises at the back, ami the name and business of the occupier oi 
 the buildings in the oourt was exhibited above the gateway <>n 
 a fascia of cement. The two houses and premises behind be- 
 longed to one landlord. In is,>j the landlord granted a lease 
 for twenty-one years of the buildings in the court with the 
 easements and appurtenances as then oooupied. Thistenaney 
 subsequently became vested in one Bull, and in 1876 the pre- 
 mises were let to tho plaintiff with the appurtenances a< then 
 lately in the occupation of BulL The fascia had been all th>- 
 time in the enjoyment first of the original tenant and thi 
 BulL In i^ti one <•! the two houses was let to the defendant 
 then in his occupation," and in l ^ts th,. tenancy n . re- 
 newed to him in the same terms. I •■ :• ndanl disputed the 
 plaintifPs right to the fascia. Eeld, that plaintiff was entitled 
 t-i the use oi the fascia itself by grant from the oommon land- 
 lord as paroel of one tenement with the buildings in the oourt, 
 and that defendant bad no right to interfere with it. 1 
 
 ' Bee FraneU v. Hoyuwrd, L. II. 22 Oh, I». 177 j 52 L. J. 
 . it will be lei n. i t of out- 
 
 right different tenants of portu iso/ffc 
 
 ' in which one portion was in ■ i 
 suboi ■ ' tier by the grantor.
 
 DIGEST OF THE LAW OF EASEMENTS. I 1 
 
 § 14. Where an owner of two tenements 
 Bevers them, the question of whether he con- 
 veys the portion which lie divides off from the 
 other under the implied covenant that each 
 Bhall be enjoyed with all the advantages, not 
 being casements of necessity, which it possessed in 
 relation to the other before the severance, is in 
 each ease a question depending either upon the 
 const ruction of the grant, or upon inferences 
 drawn from the facts and circumstances of the 
 case. 
 
 Of Easements arising on Severance of Tenements. 
 
 § 15. On severance of a tenement by transfer 
 or devise of a portion of it or otherwise, a grant 
 to the grantee or reservation to the grantor will 
 be implied, 
 
 (A.) Of all those conveniences of a con- 
 tinuous 1 and apparent character which one 
 part of the tenement derives from another and 
 which have in fact been used by the owner 
 during the unity, and which, by the disposition 
 of the two tenements inter se, arc required for 
 the use of the part conveyed or the part 
 
 1 Poldon v. Bastard (case of a pump), apparent but not con- 
 tinous, bo that the grant was mi implied: L. It. 1 Q. B. 100; 
 35 L. J. Q. B. 92. This rule does not apply to conveniences 
 of light, see Wheddon v. Murrains, 12 Ch. D. 31 ; -IS L. J. Ch. 
 So3.
 
 1 J QIGEST OF THE l-\\v OP BASEMEN I S. 
 
 reserved respectively, though they may have 
 had no legal existence as easements ; ' 
 
 B.) . \ 1 1 c 1 of :ill those t •: t -< 1 1 1 < 1 1 1 -. without 
 
 which tin- enjoyment of tli»' severed portions 
 
 could not be had ;it all, or except through an 
 
 extravagant and unreasonable outlay. 
 
 These latter are called easements <>f necessity. 
 
 1 Francis v. Wayward, see ant.', p, 10. This is only 
 role oi evidence. It would restrict the implication of agranl 
 to tlii.-.> cases in which the convenience is both apparent 
 continuous, but, a- may ho Been by the ■ -<s v. 
 
 .and other cases, when the evidence is sufficiently strong 
 of the intention of the grantor, a grant will be implied ■ 
 in the case of discontinuous conveniences. Tin- case of '/'/'• 
 follows: — 
 A ami 1; were b mania of adjoining farms ander the - i 
 landlord. They \viii' at first tenants from year to y< r. I 
 1873 B took a lease "i hia t arm, and in 1878 A took a lea 
 hi- with all thr appurtenanoee thereunto belonging. A public 
 road passed through B.'a farm to theses coast, and a pi 
 lane used by A. - I 1 from thi issed 
 
 from A's farm through a portion of B'a farm connecting 
 farm with the public road, 'flu- had always 1 1 by 
 
 \. Tip' lane was banked on either aide ami was shut off from 
 B farm. Hold, on action brought by A for obstruction 
 B, that thi- lam' v larj for the oonvenient and 
 
 comfortable enjoyment ••( \\- farm, and that the demise to B in 
 1873 oould not ho mad" tree of the right of a to ase the lane 
 wit!. • from the grant of the tenancy to A, in 
 
 who . rvation of the lane must ho implied in the 
 
 • wlii< h jia--.il t'. A nml'T tho word " appurtenanoes " in 
 the lease of is7v 
 
 Thomat i I I., i:. 20 »». 1'.. I>. 220; 
 
 .-,: i.. .i. i:. '•. p.. 198. 
 Troughton, is I.. T. S08i
 
 I>| OF THE law OF i:\-i.Mi 13 
 
 (C.) Where the intention <>1' the vendor is 
 not expressed by the terms of a grant in 
 writing, but is expressed by an act which is 
 inconsistent with his having granted (as appur- 
 tenant to the tenement sold) a convenience 
 theretofore used over the tenement which he 
 retains, such convenience, unless it be one oi 
 necessity, is not conveyed to the vendee. 
 
 Illustrations. — (A.) 
 
 («.) A is the owner of two adjoining houses. A s itter runs 
 along the top of both houses which carries off rain-water. 
 
 The flow is Erom house ' a ' to house ' i.' 
 
 A sells house 'a' to B, and then house '6' to C. C i .mnot 
 restrain B Erom letting the water pass by the portion oi the 
 gutter appurtenanl to < Ps house, because < ' takes only the rights 
 of A, and the passage of tho water by the gutter, though nol an 
 easement, is .1 continuous and apparent convenience, used by the 
 owner during the unity of possession, and required by the dis- 
 position of the two tenements intt r se for the use of the tenement 
 -conveyed to B. 1 
 
 A purchased one pi three detached villas, No. 1 ; 1> then pur- 
 chased the other two, Nos. 2 and 3. There was a .u':it«- in front 
 ■of No. 1 , and a gate in front of No. 3, and a drive in front of the 
 villas connecting the gates, and intended for use for the three 
 villas. Tho conveyance to A comprised the land in front of 
 No. 1, up to tho road. A put up a fence t<> prevent B from 
 using tho drive in front of A's villa. But B had .-till sufficient 
 roadway for driving in and out of his tenement. B brought 
 an action to restrain A's interference with B's right of way in 
 front of A's villa. The right of way was not expressly n at rvi 1 
 in A's conveyance, nor was the grant expressed in B's convey- 
 ance; if it had been, this could not have prejudiced A. whose 
 ■conveyance was prior to B's, nor could such a grant be implied 
 
 1 Coppnj v. J. Dc Z>\, 11th Hen. VII.
 
 14 DIGEST OF THE LaVW OP BAHKMENTB. 
 
 in l'.'s favour, beoauae the oonvenienoe was not a oontinc 
 and apparent one, nor, had it been so, was it required by the 
 disposition of the tenemente inter m tor the use of the pari oon- 
 I to him. 1 
 
 A had two neighbouring houses, 'a* and •&.' II spied 
 
 • o' and let ' /..' retaining a right of way, not a way of necmity, 
 running *fa*g a walled paasage aerosa the premisee of the 1 
 1 /..' A afterwards mortgaged i b i with its premises, In c l udin g 
 the passage, but without reserving any right <>f way. A died 
 pending the mortgage, leaving 'o'to B and '6' to 0. Ore- 
 
 deemcd the niortjja^o and Mocked up the pa-- ■■-< ■ !'■ had sold 
 
 • „■ to I >. 1 1 tip rafore now stood in the place of A 
 
 house 'a,' and sued »' for bloclring up the passage. But as by 
 
 the terms of the mortgage the passage had not been 
 
 and had not ainoe been used and enjoyed with the tenement 
 
 the disposition of the tenements by A on their severance did not 
 
 entitle ]) to a use of the passage as a-ainst C\ who had acquired 
 
 the right and interest of the mortgagee, which was not subject 
 to any express n servation of the pass ig 
 
 TUtutrati* nt of Ecuema ' of Ni 1 U 1 B , 
 (a.) A is the owner of a house under which a drain rn 
 the sewer. 
 
 A divides this into two portions, 'o 1 and ■ A.' under which tho 
 drain runs from ' -I ' to ' i'.' and bo undi r'b' to the sewer. 
 
 A. sells 'o'to cwith«.nt express reservation of the right to 
 discharge the contents of the drain through auoh part of the 
 drain as runs under the tenemenl sold toC; andafterwards sella 
 •o'toD. D has a right to discharge the < thedrain 
 
 under his house through that portion of the drain which is under 
 Cs house, because this oonvenii uoewas used by the owner during 
 unity of possession and at the time of the Bale toO, and is 1 
 Bary for the use of the tenement '"•' A n ervation of the right 
 therefore implied at the time of the sale to «'. and the right 
 • 1 1 on sale to him of the tenement '«.' J 
 
 v. /•■■'<. Oh. D. 1884, L. J ■ ■■ . N- • I I ■ ]■■ < : °. 
 K k$, 2Q. B. 684; 60 L J. Q. B. 841 1891 - 
 ! II. i N. 816; 26 1.. J. Bxch. 288.
 
 DIGEST OF THE LAW OP BASEMENTS. 1 ~> 
 
 (/».) A ] two tenements. From the tenement 'a' a 
 
 stream of water runs to tenement ' &,' and fills a pool app 
 nanl to ' /-.' The pool is necessary to the enjoyment <>f the 
 tenement '6.' A -''lis 'b ' to < '. A cannot stop the flow of 
 water to < I's pool. 1 
 
 ('-.) A has two closes, ' </ ' and ' /*.' 
 
 1 a ' is only accessible bya path through ' &.' A. sells' a' to 
 ( '. and afterwards sells ' b ' to I >. 
 
 C has a way of necessity through '5' by implied grant. Hut 
 
 Supposing that A sells ' b ' first to I>, and retains ' a ' himself for 
 
 some time, and afterwards Bells 'a' to 0, A would by implied 
 
 reservation have a way of necessity through the close sold to 
 D; and on his conveying to 0. the latter also would have this 
 privilege. 2 
 
 ('/.) Pipes convey water from estate '6' to estate ' a.' Both 
 belong to ono person, A. He Bells 'a' to I'-, and afterwards 
 sells ' /, ' to 0. The water is necessary to the enjoyment of the 
 estate ' <<.' ( '. cannot cut off the water from B. :1 
 
 1 Bury v. Pigott, Popham's Rep. 166 ; Tud. L. C. 
 
 i Pinnington v. Gotland, <> Exoh. 1 ; lili L. J. Exch. 348. 
 
 : < Watts v. KeUon, L. R. 6 Ch. 166 ; 40 L. J. Ch. 126. 
 
 Note. — In the case of Suffield v. Brown, Lord Westbury dis- 
 sented from the decision in Pyer v. Carter, saying that in all 
 such cases the vendeo took according to the terms of his con- 
 veyance, and not according to the disposition of tenements, and 
 that it was undesirable to introduce tho fiction of an implied 
 reservation by the grantor of a right which ho did not expressly 
 reserve in his conveyance. But Suffield v. Brown, -VI L. J. Ch. 
 249 (bowsprit case;, and Wheeldon v. Bum -, 12 Ch. J'. SI 
 (window lights case), in which tho same view was taken, were 
 not cases of continuous and apparent easements, or of easements 
 •of necessity, and it would appear that the old rule as to reserva- 
 tion to the grantor still holds good in the case of continuous and 
 apparent conveniences. As mentioned in page 12, it has been 
 also applied lately to cases of discontinuous apparent easeni' 
 as in tho case of 'Thomas \. Owen, 20 Q. B. D. 225 ; 57 L. J.
 
 1»; QIGE8T Of THE I . \ nn' OF BftflKMBW l's. 
 
 Ill, | • 
 
 \ enl from pari of which ('a 
 
 through a pipe to another pari A. cute the pipe and si 
 
 the flow "i water which was i I ury to the enjoymi 
 
 ■ | \ ii.- thi :. -■ He • ' to ( '. 'I'll" oonvenien 
 the flow "t water i- aol conveyed to by the mere sale bo him 
 of the tenement 'h'. 1 
 
 ^ 16. Except in the case of << -i it ii in< »u-i and 
 apparenl easements and easements of necessity, 
 conveniences enjoyed during unity of posa s« 
 sion would qo1 generally pass oii Beverance of 
 a tenement and conveyance of "in- portion »>t' 
 h without express words, such as "therewith 
 used and enjoyed," &c. 
 
 ^ 17. But now, under sect. 6 of the Convey- 
 ancing Act <>t' ls.Sl, such words arc not lie. 
 sary. All Buch conveniences will pass to the 
 
 extent to which they were enjoyed during 
 
 unity. The Act. however, will only apply to 
 conveyances executed subsequent \<< its coming 
 into force. 
 
 vj 17a. A grant of an easement will he im- 
 plied in cases where not to imply it would 
 
 < i. B. 193, in which the evidence of intention to n very 
 
 -. 
 
 .. .: ' . I.. EL 87 Oh. D. 400; 
 
 .'iT I.. .1. EL I lhano. -•>•>. 
 1 (I Mi r< v. Bro • • . 1 '}• i. i-'".
 
 DIGEST OE THE LAW OF EASEMENTS. 17 
 
 enable the vendor to derogate from bis granl 
 
 of the land. 
 
 Uluatration. 
 
 A,grantfl land to Bfor the purpose of building. Bhaa an 
 easemenl of light us appurtenant to bis buildings over the ad- 
 joining land <>i' A, whether the purpose oi building is mentioni •! 
 
 in tin' grant or not. 1 
 
 4. — Easements by Prescription. 
 PRESCRIPTION AT COMMON /..ill. 
 
 § 18. Prescription at Common Law is a nmde 
 of acquiring property by showing that the use 
 of it has been immemorially enjoyed by the 
 claimant and those through whom he claims, 
 anil bv thereby raising the presumption of a 
 grant having been originally made of it. 
 
 Proof of usage for a period of reasonable 
 length, which was at one time thought to re- 
 quire a period of no less duration than from 
 the 1st year of Richard the First, has been 
 considered sufficieni evidence of immemorial 
 usage. 
 
 Such a period is not sufficient unless it is of 
 such a length as to raise the presumption of a 
 
 1 Robinson v. Grave, 21 Weekly Reporter, 223. 
 
 Similarly, if A sells land t<» 1'. with a house on it, A cannot 
 excavate in his adjoining land so as t<> imperil the stability of 
 tho house. 
 
 See G App. Ca. 82(i. I><il{<>u v. J/
 
 I s DIGBB1 OP i in: law OF BA81 mi\ P8, 
 
 grant having been made originally and since 
 lost. 
 
 A granl may be presumed <<> have been made 
 at ;i remoter period and Lost, if uninterrupted 
 enjoyment for 20 years is shown. 
 
 This presumption ls one of fact. The fic- 
 tion of ilif presumption of ;i losl granl was 
 invented aboul L760, 1 t<» avoid the diffi- 
 rultv <•!' proof <>t' immemorial usage. It means 
 little more than that, after proof has been 
 given of uninterrupted enjoymenl for 20 years, 
 there is generally strong ground for believing 
 thai the enjoymenl had a lawful origin, and 
 thai the jury may be called upon to find, not 
 thai it had such an origin, bul whether it had 
 BUch an origin or not. In terms they are 
 called upon to find whether there was or no1 a 
 grant, which has since been Losl ; being told at 
 the same time thai if they believe thai quiel 
 enjoymenl has been had, as testified, for 20 
 years uninterruptedly, they oughl so to find. 
 
 Tin re can be no prescription at common law 
 in the following cases : — 
 
 1 1 the claim be In conflid r Lth a stat ate. 
 
 It' it he :it variance with a prescriptive right. 
 
 1 s. «• the judg • ■ ' of Lord Blackburn in /'•</' 
 p. B12, App. < ... II. L.
 
 DIGEST OF THE LAW OF BASEMENTS. 19 
 
 If the claim be in conflict with the express or 
 implied limitations «»!' a grant or agreement 
 between the dominant and servient owners. 
 
 If the servient owner is ignorant of the user. 
 
 If the servient owner, either from the nature 
 of the user by the dominant tenement, or from 
 the nature of the oceupancy of the servient 
 tenement, is incapable of resisting the user by 
 reasonable means.* 
 
 • In Ihriton v. Angus, a case of the right to the support of 
 ancient buildings by adjoining land (6 App. ("a. (II. L.) p. 740), 
 several of the judges were of opinion that tho servient owner 
 was incapablo of resisting tho user by reasonable means. A 
 man who builds on the border of his land does nothing un- 
 lawful. Tin' neighbour is bound to keep up a sufficient support 
 to tho land itself, i.e., to continue to forbear from diminishing 
 the amount of support needed for the land unweighted with 
 buildings. If ho proposes to withdraw tho support required for 
 tho extra thrust with which he is burdened by the buildings, 
 how is ho so to limit his excavation as to stop short of the 
 point at which the land itself would givo way even though 
 unweighted with buildings [see § 84)? Unless he confines 
 himself within such an amount of excavation he becomes liable 
 for damage to the land. lint it is practically impossible to 
 ascertain tho minimum of support required for tho land un- 
 weighted with buildings, and therefore would seem to be prac- 
 tically impossible to resist the user. And in any case the circum- 
 stances in which a man is driven t<> lav waste bis own land in 
 order to relieve it of the pressure of his neighbour's house, can 
 hardly be said to afford reasonable means of resisting lie ai 
 
 It seems, too. a strange anomaly that while it is quite lawful 
 for a man to build on tho border of his land, it should also be 
 lawful for the neighbour to destroy the building, by excavation 
 in his own soil, within twenty years of it- erection. 
 
 But tho Court held that on the long current of authorities
 
 20 ]>h.] -i OF i in: LAW OF EA8EM1 N I 8. 
 
 Ilh I 
 
 ((/. i ant tenement is leased for 19 yean to a tenant by 
 
 A. the owner, and after the termination <>f the Lease he 1' 
 
 its. During tli" first 20 years of that ]»'ii<»l tin- 
 owner of tin 1 dominant tenement enjoys :i oser of the light 
 passing unobstructed from the servient tenement. He - then 
 obstructed by the tenant <>i the servient tenement. Hut during 
 tlic first L9 years the landlord had no pow r to oppose the 
 The prescriptive right i-< not acquired at common law. 
 
 (/».) A, the servient owner, though only occupy ingby a tenant, 
 
 has, during a part of the term "t" the Lease, aotii ( the oser by 
 
 the dominant owner. 
 
 A - jfae. termination of the lease he renews, grantL .- i20y< 
 . without requiring his tenant to resist the oser. 1 hiring the 
 whole of the renewed term oi 20 years the dominant tenement 
 enjoys the oser. 
 
 The owner of the dominant tenement may claim a pi 
 I L'ht. 
 
 {<•.) A ie tin- owner <>f soil subjacent ti> loud of B, which A's 
 supports, 
 
 A ■ the Bubjaoent soil tox 20 years without leaving 
 
 any Buppoxt, and claims to have acquired a prescriptive right so 
 coavate; but he cannot acquire the right, inasmuch \ 
 has not done any act in the soil of B, and B h 
 preventing A from excavating in any manner he pleas* 
 
 (</.) A is th«' owner of a mine, from which he has pumped the 
 water during -" years for facilitating th< >n of its 
 
 minerals. The water which, as it issued from the mine, foi 
 .i Btream,was used for 20 years by B for his mill. A, not finding 
 
 ry any Longer to pump out the water, ceast - to do 
 and the stream is ao Longer supplied. B claims to have the 
 atinued. 
 
 the easement might be acquired by prescription at common 
 
 law; the judges, Lnoluding the Lord Chanoellor, 
 
 to the opinions of those just referred to, considered 
 
 I ible "t 1" ing I oable 
 
 . 
 
 i Blacketi v. Bradly, l B. A B. MO; 31 I.. J, Q. I
 
 DKil'.ST of tin; i.wv of BASEMENTS. 21 
 
 During the 20 yean of B's user, A could only have resisti I 
 
 tho iiscr l>y getting rid <>i the water in a different way, which 
 
 WOuld have entaQcd considerable) expi n (>. A A has ii"t had 
 
 reasonable means during the -<> years of resisting the user, B 
 oannot olaim a righl by prescription to the continuance of the 
 supply. 1 See also § 2, ante, as to permanence of the object of 
 the claim. 
 
 (e.) A claims a right of support to his building from tho con- 
 tiguous building of B, and founds a claim to damages on this 
 right by reason of B haying removed his building) and thus 
 endamaged A's building. Such a righl cannot bo allowed, 
 because it cannot have existed immcmorially, and because it 
 oannot havo been openly acquired, and there was therefore no 
 opportunity for resistance. 9 
 
 § 19. No easement of light can be claimed 
 except as appurtenant to buildings. 
 
 Illustration. 
 A has a timber yard and saw-pit, and has been in the enjoy- 
 ment of the light passing laterally over B's ground to his saw- 
 pit for moro than 20 years. B then builds and obstructs the 
 
 light. A cannot claim a right of easement to have the obstruc- 
 tion removed. ■ 
 
 § 20. In regard to water an easement can- 
 not be acquired by prescription at common law 
 
 • ArkwrigU v. Gett, 5 M. & W. 203 ; 8 L. J. \. B. Exch. 201. 
 
 So&wnonv. rintnera' Co., I R.& rT.585; 28 L. J. Exch. 870. 
 
 This case, however, La uo Longer law it' Lemaitri w Davie, in 
 
 which" it was decided that such an easement may be acquired 
 under the Prescription Act, is accepted, q. v. p, 64, since the 
 Prescription Act admit- of the acquisition Of those easements 
 
 only which might have 1 □ acquired at common law. 
 
 a Roberta v. Macord, 1 Moo. & Bob. 230. 
 Potts v. Smith, I.. R. 6 Eq. 311 : 38 L. J. Ch. 58.
 
 22 DIG! -i OF THE LAW OF i IdBFJfEN I & 
 
 to streams not flowing in defined courses, and 
 to collections of water thai are uol permanent. 1 
 
 §21. The character of the enjoyment to 
 enure as a prescriptive right must be through- 
 out that tit' ;m easement. Therefore, if during 
 a part <>f the enjoyment on which the claim 
 depends there has been unity of ownership of 
 the two tenements vested in the person claim- 
 ing as dominant owner or in his assignors, 
 the continuity of enjoyment required in the 
 character of an casement is destroyed. 
 
 § 22. The suspension of user temporarily by 
 agreement, or the substitution temporarily of 
 another user for the particular one exercised, is 
 not an interruption. 9 
 
 lllit.-fr'it, 
 
 A is using a way over B'b close. B wishes to mak< 
 across the way ami builds a bridge orer it, by which A may 
 then cross. 
 
 The use oi the way is suspended by agreement for this ]>ur- 
 ThlS i- ii'it an interruption. 
 
 A uses a way ore* B's close. B wishes for a few 'lays to 
 
 .t OVet a portion >'l the May, ami allots t.. A aimtlmr 
 
 1 Sou ' v. Taylor, 11 Exoh, .'if.'.'; •-•■". I.. I 
 - Paynt \. Bheddon, 1 Moo. a Bob. 
 
 I l:. N. B. 1 '-'<». 
 Y. Ed ' . Will< i, 282,
 
 DIGEST OF THE LAW OP BASEMENTS. 23 
 
 way by which he may pass round the tenl into the other portion 
 of tho way. 
 A makes use of this new path. This Lb not an interruption. 
 
 PRESCRIPTION UNDER THE PRESCRIPTION ACT.* 
 
 § 23. No casement can be acquired under 
 
 this Act unless the servient or dominant owner 
 brings an action; 2 in which case, to enable the 
 owner or occupier of the dominant tenement to 
 claim the right to the easement, the enjoyment 
 must be shown to have continued up to the 
 commencement of the suit or action. (See 
 sec. 4, Prescription Act.) 
 
 § 24. The easements which can be acquired 
 by statutory prescription under the Prescrip- 
 tion Act are such easements at common law as 
 may be acquired by grant, prescription, or 
 custom, to any way, or other easement* or to 
 any watercourse and use of water. 
 
 1 It has been held that tho 3rd Bection of tho Prescription 
 Act (access and use of light to tenements) has no application as 
 against the Crown, which is not mentioned in it. Perry v. 
 States, (1891) 1 t'h. 858; 60 L. J. Oh. 345. 
 
 - Wright v. WiMama, 1 M. & W. 77 ; 5 L. J. x. s. Exoh. 107. 
 Richards v. Fry, 7 A. & E. 898; 7 L. J. x. s. K. B. 68. 
 
 i Bee in Dalton v. Angus, the observations of Belhorne, Lord 
 Chancellor, on the construction oi this section, and especially of 
 the words in italu j, with reference to the opinion of ErL . < '. J.. 
 in Webb v. Bird, that the amplication of the section is confined 
 to easements of ways and water, (i App. Ca. 740, II. L.
 
 2 I DIG! ST OF THE LAW OF I ASEMEN I 9. 
 
 § 25. The enjoymenl on which the ease- 
 incut [a claimed mua1 have been withoul inter- 
 ruption. See as to the meaning of "without 
 interruption.*' §§ 28, 32, and 35. 
 
 TUu I 
 
 Enjoyment of 'wind t<> :i mill I- not susceptible of interruption. 
 Such :i right, therefore, cannot 1"' acquired as an east iment 
 under the Prescription Ait.' [See boo. '-'.) 
 
 1 The right to support of buildings by land does i 
 under the category of easements 'which can 1"' acquired under 
 the Prescription Act, unless it be of a kind that is susceptible 
 of interruption. In Dalton v. .I",'/".", supra, the Lord Chancellor 
 (Selborne), Lord Blackburn, and Lord Watson considered that 
 Buch an easement was susceptible el interruption and could be 
 quired. Fry, J., in a very elaborate judgmenl expressed 
 
 a contrary opinion, and Lord Pi ozance agr 1 with him. Tho 
 
 question whether such an easement can 1"' acquired under the 
 
 Prescription Act was not finally determined in this case. On 
 
 luthorities the easement was capable of being acquired, 
 
 and was held to have ]»■< a acquired by prescription at Common 
 
 Law. 
 
 I ;■] ;.. ad a tabular statemt at pp. 26 to 29] from which may 
 the opinions of the judges in the una] I this 
 
 important case on the particular questions formulated for their 
 >!• ration. 
 
 : the judges, it will be ibly Pollock, Field, 
 
 ai .1 \! ■.• isty), were of opinion that the righl of support in such 
 
 iit be acquired by proscription at Common Law, hut 
 
 a grant, bul is a right of property restricting the 
 
 ova removing the ipport after the buildings have 
 
 at. The Lord Chanoellor (Lord Selborne thought 
 
 • nt might be acquired, both by | □ at 
 
 i r w, and under the Prescription Act, and Lord Cole- 
 
 - l with him. Lord Blackburn agreed with Lord 
 
 might 1 •• acquire d at
 
 DKJKST OF I IIH LAW OF BASEMENTS. 2d 
 
 § 26. The claim to an easemenl under the 
 Prescription Act may be made in the name of 
 
 the occupier or owner of the dominant tene- 
 ment, but when the easement is acquired, it 
 is acquired for the benefil of the dominant 
 tenement, under a presumed irrant to the owner 
 of the fee. 
 
 § 27. A claim cannot be made under the Act 
 unless the enjoyment has been actually had for 
 at least 20 years. 
 
 § 28. A claim to an easement under an en- 
 joyment extending to any period short of 40 
 
 Common Law, but wished to give no opinion as to the applica- 
 bility of tho Prescription Act. 
 
 All the judges agreed that open enjoyment was all that was 
 necessary fur tin- acquisition of the easement, e\ en when altera- 
 tions were made which threw an extra burden Oil tie' servient 
 tenement. 
 
 Bowen, J., qualified bis opinion to the same effect by saying thai 
 to render knowledge or notice unnecessary the open enjoyment 
 must 1"' such as would give knowledge or notice of the all 
 character ol tie' buildings. 
 
 Pry, J., and Lord Penzance agreed that no interruption was 
 possible in Buch a case, and consequently that tie' right did not 
 resl upon prescript inn, either at Common Law or under the 
 Act, but that the right existed after 20 years' open enjoyment, 
 though it did not rest on any principle ; and Lord Selborne, 
 with whom Lord Watson agreed on this point, expressed the 
 opinion that the easement had positive as well a- negative 
 characteristics (see pp. 4 and 5, supra), which, apart from 
 authority, would go far to establish as a necessary consequi 
 that the right of support might be gained by prescription. 
 
 i. c
 
 2G 
 
 DIGEST OF THE LAW OF EASEMENTS. 
 
 
 
 
 Has the owner of ancient buildings 
 
 Is the period during 
 
 
 
 
 a rigid of action against the owner 
 
 which plaintiff's house 
 
 
 
 
 of lands adjoining if he disturbs his 
 
 has stood sufficient to 
 
 
 
 
 land so as to take away the lateral 
 
 give him the same right 
 
 
 — . 
 
 
 support previously afforded bu that 
 
 as if the house were 
 
 
 
 
 land ? 
 
 ancient ? 
 
 
 Pollock 
 
 Yes. It is a rule of law resting 
 not on grant but on a right of 
 
 Yes, the facts show that 
 the house had stood in 
 
 
 
 
 
 
 property which restricts the 
 
 the same state since 
 
 
 
 
 neighbour from so using his pro- 
 
 1849. 
 
 
 
 
 perty as to injure the plaintiff's 
 
 
 
 
 
 house. A man reasonably using 
 
 
 
 
 
 land has a right to support, 
 
 
 
 
 
 which after twenty years is in- 
 
 
 
 
 
 defeasible. 
 
 
 
 Field 
 
 
 Yes. Open continuous enjoyment 
 without interruption converts 
 
 Yes. 
 
 
 
 
 
 
 
 
 enjoyment into right to support 
 
 
 
 
 after the period of time requisite 
 
 
 
 
 to make the building ancient. 
 
 
 
 
 
 Case of subjacent stratum put 
 
 
 
 
 
 (liowliotham v. Wilson) showing 
 
 
 
 
 
 that the right is acquired though 
 
 
 
 
 
 no interruption may be possible. 
 
 
 
 
 
 Yes. The current of authorities 
 
 Agreed with all the 
 
 
 
 
 is unbroken. 
 
 judges who hold that 
 opinion that the Pre- 
 scription Act does not 
 apply. In the absence 
 of open uninterrupted 
 enjoyment the right ! 
 cannot be acquired. 
 
 
 
 The same as Lindley. 
 
 Same as Lindley. 
 
 
 
 
 The same as Pollock and Field. 
 Not a natural right but a right 
 of property. 
 
 The same as Pollock 
 and Field. 
 
 1 
 
 Fry 
 
 
 The right exists on a lon°* series 
 
 Twenty years a reason- 
 able period for ac- 
 
 
 
 
 of authorities, but does not rest 
 
 
 
 
 Oti any principle. The only prin- 
 
 quiring the right. 
 
 
 
 
 ciple on which it could rest is 
 
 
 
 
 
 that it is an incident attached to 
 
 
 
 
 
 property, or that it was ac- 
 
 
 
 
 
 (| uirsce(l in. Thisimpliesapower 
 
 
 
 
 
 of interruption which in such 
 
 
 
 
 
 08 ea does not exist. 
 
 
 '
 
 DIGEST OF THE LAW OF EASEMENTS. 
 
 27 
 
 If acts of defendant would have 
 caused no damage before 1849, 
 must the defendant have had 
 knowledge or notice of the 
 alterations in order to make 
 the damage done after twenty - 
 seven years an actionable 
 wrong ? 
 
 Notice not necessary. Altera- 
 tions made openly. The case 
 is the same as if the house 
 was built as a coach fac- 
 tory in 1S49. 
 
 No. Actual enjoyment suf- 
 ficient. 
 
 Plaintiff must prove an open 
 enjoyment. 
 
 Same as Lindley. 
 
 The same as Pollock and 
 Field. 
 
 Not necessary to prove know- 
 ledge or notice. 
 
 If so, is it sufficient to 
 prove knowledge or 
 notice of the fact, or 
 must knowledge of the 
 effect of alterations be 
 proved ? 
 
 No answer necessary. 
 
 No answer necessary. 
 
 If open enjoyment 
 proved, not neces- 
 sary to prove notice. 
 
 Same as Lindley. 
 
 The same as Pollock 
 and Field. 
 
 No answer necessary. 
 
 Was the course taken by the 
 judge comet in directing ver- 
 dict for plaintiff ? or ought 
 he to have left any question 
 to the jury ? 
 
 Yes. No question was raised 
 by the defendant as to the 
 facts given in evidence for 
 plaiutiff. 
 
 Yes, for the same reasons 
 
 Plaintiff's building pecu 
 liarly constructed, there- 
 fore the question of fact 
 should have been left to the 
 jury whether enjoyment of 
 the right claimed was open. 
 
 Same as Lindley. 
 
 Same as Pollock and Field. 
 
 The judge's course correct. 
 His conclusion involves the 
 proposition that by the mere 
 act of his neighbour and the 
 lapse of time, a man may 
 be deprived of the lawful 
 use of his own land.
 
 28 
 
 DIGEST OF THE LAW OF EASEMENTS. 
 
 lias the owner of ancient buildings 
 a right of action against theowner 
 
 of lands adjoining if he disturbs his 
 land so as to take away the lateral 
 support previously afforded bu that 
 land ? 
 
 Is the period during 
 i r Inch plaintiff'' s house 
 has stood sufficient to 
 give him the same right 
 as if the house were 
 ancient ? 
 
 Bowen 
 
 Coleridge 
 
 Selborne, Chancellor 
 
 Lord Penzance, 
 
 Lunl Blackburn 
 
 Lord Watson 
 
 An ancient house has such a right. 
 It is an acquired right. It in- 
 volves a burden on the land of 
 the neighbour. It is capable, 
 though it may be difficult of 
 interruption. 
 
 Agreed ■with the Lord Chancellor 
 and Lord Blackburn. 
 
 The right is an easement not 
 merely negative. Such a right 
 may be gained by prescription. 
 It is capable of interruption. 
 The second section of the Pre- 
 scription Act not restricted to 
 way and watercourse. In Webb 
 v. Bird, the opinion of Erie, C.J., 
 to this effect wrong. If the Pre- 
 scription Act does not apply then 
 twenty years' user raises pre- 
 sumption of grant. 
 
 Agreed with Mr. Justice Frv. 
 
 Fes. The right, he thinks, is ac- 
 quired at Common Law ; wished 
 to give no opinion as to the 
 Prescription Act. 
 
 Such a right is long established, 
 Bonomi v. Backhouse. The easc- 
 nit nt is a positive one. 
 
 The period sufficient if 
 enjoyment open and 
 if defendant did not 
 show that the right 
 had no lawful origin. 
 
 Agreed with the Lord 
 Chancellor and Lord 
 Blackburn. 
 
 Yes. 
 
 Agreed with Mr. Jus- 
 tice Fry. 
 
 Yes.
 
 DIGEST OF THE LAW OF EASEMENTS. 
 
 29 
 
 If acts of defendant would have 
 caused no damage before 1849, 
 must the defendant have had 
 knowledge or notice of the 
 alterations in order to make 
 the damage done after twenty- 
 seven years an actionable 
 wrong ? 
 
 Express knowledge or notice of 
 alterations must be proved, 
 or such open enjoyment 
 shown as would give know- 
 ledge or notice, or as would 
 give notice of the altered 
 character of the buildings. 
 
 Agreed with the Lord Chan- 
 cellor and Lord Blackburn. 
 
 No. 
 
 Agreed with Mr. Justice 
 Fry. 
 
 No. 
 
 If so, is it sufficient to 
 prove knoivlcdge or 
 notice of the fact, or 
 must knowledge of the 
 effect of alterations be 
 proved ? 
 
 If enjoyment open, 
 not necessary to 
 prove knowledge of 
 effect of alterations. 
 
 Agreed with Lord 
 Chancellor and Lord 
 Blackburn. 
 
 Knowledge 
 cient. 
 
 suffi- 
 
 Agreed with Mr. 
 Justice Fry. 
 
 Knowledge sufficient 
 that some support 
 is being enjoyed. 
 
 Was the course taken by tin 
 judge correct in directing vt r- 
 dict for plaintiff? or ought 
 he to have left any question 
 to the jury ? 
 
 The judge should have left 
 it to the jury to find whether 
 the enjoyment was open. 
 
 Agreed with the Lord Chan- 
 cellor and Lord Blackburn. 
 
 No question for the jury. 
 
 Agreed with Mr. Justice 
 Lindley. 
 
 No question for the jury.
 
 30 DIGEST OF THE LAW OF EASEMENTS. 
 
 rears can only be made if the enjoyment has 
 been had as of right 1 and without interruption. 
 
 The words " without interruption" suppose a 
 power of interruption, which means a power to 
 do, with a view to put a stop to the claim, some 
 act which would not entail an unreasonable 
 waste of labour and expense. 2 
 
 Interruption does not mean mere contention 
 or protest without some act tending to deprive 
 of his enjoyment 3 the party claiming the right. 
 
 Accidental interruptions to users are not such 
 interruptions as are contemplated by the Act. 4 
 
 Nothing is to be deemed to be an interruption 
 unless the act of interruption has been submitted 
 to or acquiesced in for one year. (Sec. 4.) 
 
 In order to negative submission it is not 
 necessary that the party interrupted should 
 have brought an action or suit, or taken any 
 active steps to remove the obstruction: it is 
 enough it' he lias communicated to the party 
 causing the obstruction that he does not submit 
 to or acquiesce in it. 5 
 
 La the meaning of the words "actually enjoyed by any 
 d < laiming righl thereto." (See § 42.) 
 - Per Will . .1.. see Webb v. Bird, cited with approval by 
 inoe in Dalton v. Angus, <i App. Oa. 806. 
 , 2H. »S \. B28. 
 I Bing. \. 0.881; 7 L. J. n. 8. 0. P. 209. 
 ' ■ ••■ B. 1" C. P. 108 ; 11 1.. J. C. P. 66.
 
 DIGEST OF Till: LAW OF EASEMENTS. -*U 
 
 § 29. The right to the easement under such 
 
 enjoyment cannot be defeated by merely show- 
 ing that the right so enjoyed for 20 years was 
 first enjoyed at a date prior to the period of 20 
 years, such date being more recent than the 
 period in history to which legal memory is 
 supposed to extend (viz., the first year of the 
 reign of Richard I.). 
 
 § 30. But the right to an easement (other 
 than an easement of light) under the enjoy- 
 ment of 20 years required by the Act, may be 
 defeated in any other way in which an ease- 
 ment claimed, by prescription at common law 
 might be defeated before the Act. (Sec. 2.) 
 
 Kicharcl I. 
 
 Illustration, 
 b 
 
 <ia = enjoyment for the full period of 20 years as of right and 
 without interruption. 
 
 The claim in respect of "a a" cannot be defeated by showing 
 that the enjoyment had its origin at any period (pay x or b) more 
 recent than the first year of the reign of Eichard the First. 
 
 § 31. The claim may be defeated, as it might 
 be at common law before the Act, by showing 
 that the enjoyment was not submitted to, or 
 that the easement was enjoyed secretly and 
 without the knowledge of the owner of the 
 servient tenement, or that the enjoyment was 
 subject to interruption, and was on every occa-
 
 32 DIGEST P Til 1 : LAW OF EASEMENTS. 
 
 si. m resumed by license of the owner of the 
 Bervienl tenement. 
 
 § 32. The claim may also be defeated if the 
 easement is shown to have been enjoyed dis- 
 (•Hiitinuously. There may have been no inter- 
 ruption on the part of others, but the user may 
 have been intermittent to such an extent as to 
 negative the enjoyment " as of right" required 
 by the Act. 1 
 
 Illustration. 
 
 A, for tho purpose of cutting timber iu his wood, had used a 
 road belonging to B 31 years before the action by B for tres- 
 pass, and again 16 years before the action, and again in the year 
 in -which the action was brought. The right not having been 
 exercised continuously, A's defence of actual enjoyment for 
 20 years as of right fails. 1 
 
 The expression " actually enjoyed" does not, 
 however, require absolute continuity of enjoy- 
 ment. 
 
 Illustration. 
 A has moveable shutters, which are opened at his convenience 
 from time to time, to admit light. The right to light would, 
 under such circumstances, be gained at the end of 20 years, 
 provided that no such interruption takes place on the part of the 
 servient owner as is contemplated in sec. 4 (see § 28. ) 3 
 
 ' Eolliru v. Verney, 11 Q. B. Div. 715; App. 13 Q. B. D. 
 629; 53 L. J. B. Q. B. 430; and observations of Baron Parke 
 in Lowt v. Carpenter, 6 Exch. 825, referred to in it. (A case of 
 a righl ol way used for removing timber at intervals of several 
 y.irs.) 
 
 - Cooper v. Straker, L. R. 40 Ch. D. 21 ; 58 L. J. E. Ch. 2G.
 
 DIGEST OF THE LAW OF EASEMENTS. 33 
 
 § 33. If the enjoyment lias extended to a 
 period of 40 years as of right and without 
 interruption, the right to the easement becomes 
 absolute, and may not be defeated by any such 
 defences (sec. 2) unless the enjoyment has been 
 had by agreement in writing. 
 
 Illustration . 
 A has had enjoyment as of right and without interruption for 
 the full period of 40 years without any agreement in writing. 
 His right to the easement is absolute. 
 
 § 34. In the case of a prescriptive right to 
 light, 1 the actual enjoyment 1 of the access of 
 light without interruption 2 for 20 years gives 
 an absolute right, unless the right is limited by 
 agreement in writing. 3 (Sec. 3.) 
 
 The words of the Act are, "unless it shall 
 '" appear that the same was enjoyed by some 
 " consent or agreement expressly made or given 
 " for that purpose by deed or writing." These 
 words have created great difficulty of inter- 
 pretation. What is probably intended is, that 
 to prevent the acquisition ofan easement there 
 must be an acknowledgment by deed by the 
 
 1 Tapling v. Jones, 11 II. L. C. 290; 34 L. J. C. P. 342. 
 
 2 Presland v. Bingham, (App.) L. E. 41 Ch. D. 268. 
 
 3 Bewley v. Atkinson, (App.) 13 Ch. D. 283; 49 L. J. Ch. 153. 
 Mitchell v. Cantrill, (App.) L. E. 37 Ch. D. 56; 
 
 57 L. J. E. Ch. 72. 
 c5
 
 3 I DIGEST OF THE LAW OF EASEMENTS. 
 
 dominant owner that the enjoyment is per- 
 missive. 
 
 §35. u Interruption" does not include proved 
 obstruction of a fluctuating or temporary cha- 
 racter, unless acquiescence in such obstruction 
 for the period required by the statute (sec. 4), 
 is also proved. 1 
 
 Illustration. 
 
 Obstruction of A's ancient lights by B, by raising a party- 
 wall 15 feet above its original height. B pleaded that for 
 several years prior to the completion of the 20 years, he had ob- 
 structed the light to a greater extent by piling up empty pack- 
 ing cases. It was proved, however, that the packing cases were 
 subject to constant removal, some to be returned, some to be 
 broken up. Held (in appeal), that there had been no interrup- 
 tion, within the 4th section, of plaintiff's enjoyment of light. 1 
 
 § 36. The " access" of light means the pas- 
 sage of light through a definite and permanent 
 channel. 2 
 
 Illustration. 
 
 A builds a structure for storing and exhibiting timber, the 
 two ends of the lower parts of the sides being left open to afford 
 access of light and air- to the timber. The way in which the 
 timber was laid varied from time to time, and the channel for 
 tlii' receipt of light and air was therefore indefinite and con- 
 stantly varying. This mode of enjoyment of light did not satisfy 
 tin' requirements of the statute for the acquisition of the ease- 
 ment of li-rht. 2 
 
 ' PreaUmd v. Bingham, (App.) L. E. 41 Ch. D. 268. 
 : Harris v. D< Pinna, (App.) L. Hep. 33 Ch. D. 23S ; 
 
 oG L. J. Bep. Chanc. 344.
 
 DIGEST OF THE LAW OF EASEMENTS. 35 
 
 § 37. No presumption of enjoyment for the 
 term of 20 years, or of 40 years, can be made 
 from any shorter term of enjoyment shown to 
 have been had. 
 
 § 38. " The time during which any person, 
 otherwise capable of resisting any claim to 
 any of the matters before mentioned, shall 
 have been or shall be an infant, idiot, non 
 compos mentis, feme covert,* or tenant for life, 
 or during which any action or suit shall have 
 been pending, and which shall have been 
 diligently prosecuted until abated by the 
 death of any party or parties thereto, shall 
 be excluded in the computation of the periods 
 hereinbefore mentioned, except only in cases 
 where the right or claim is hereby declared 
 to be absolute and indefeasible." 7th section. 
 
 § 39. " When any land or water upon, over, 
 or from which any such way or other c conve- 
 ' nient water-course ' [error for ' easement or 
 1 any water-course'] or use of water shall have 
 been or shall be enjoyed or derived hath been 
 or shall be held under or by virtue of any 
 term of life or any term of years exceeding- 
 three years from the granting thereof, the 
 
 * i.e., "a woman with, matrimonial incapacity for contracting." ' 
 But the disability no longer exists. See 45 & 46 Vict. c. 75.
 
 : 6 DIGEST OF THE LAW OF EASEMENTS. 
 
 (< time of the enjoyment of such way or other 
 u matter as herein last before mentioned during 
 c< the continuance of such term shall be excluded 
 " in the computation of the said period of 40 
 " years, in <asc the claim shall within three 
 " years next after the end or sooner dctermina- 
 " tion of such term be resisted by any person 
 •• entitled to any reversion expectant on the 
 " determination thereof."* 8th section. 
 
 Illustrations to Sec, 4. 
 
 (a.) A brings a suit against B claiming an casement to a way 
 <>v<T tin* tenement of B, in the exercise of A's right to which A 
 alleges that he has been resisted by B. 
 
 B has brought no suit for trespass, but as A has brought this 
 -uit he may establish his right to the easement, if he can show 
 that he has bad enjoyment for the required term of 20 years 
 next preceding the suit, without interruption submitted to or 
 acquiesced in by A, for one year after A had notice of the act of 
 interruption from B. 1 
 
 (b.) In the same case B shows that the interruption was a 
 period next preceding the suit, and argues that therefore the 
 enjoyment does not satisfy the requirements of the Prescription 
 Act, as the enjoyment must be next preceding tho suit. 
 
 * The words "any person entitled to any reversion expectant 
 •• mi ili.' lift i -rin ina tit >n thereof " include a tenant at will to the 
 owner of tin; reversion, according to tho view taken by the 
 Division Court in Laird v. Briggs, 16 Ch. Div. -MO. The 
 Appellate Court, however (1!) Oh. Div. 22), declined to express 
 
 an opinion t>n this point, and intimated that they must not bo 
 ■ n to .i'jti .■ with the construction so placed on sec. 8. 
 I v. Leaker, L. 15. L5Q.B.D. 629; 54 L. J. E. Q.B. 
 
 it w;is held that the word " reversion" is to bo read in its 
 i^niiication, ami does nol include " remainder." 
 ' Wright v. Wittidms, 1 M. & W. 77 ; 6 L. J. n. s. Exeh. 107. 
 ■ hard* v. Fry, 7 A. & E. 698 ; 7 L. J. x. s. K. B. 68.
 
 DIGEST OF THE LAW OF EASEMENTS. 37 
 
 A, however, may recover in. this case, provided that he has 
 enjoyed without interruption, for 19 years and one day, followed 
 immediately by an interruption for a term of not more than 3(54 
 days immediately before tho suit, since this interruption, being 
 less than one year, is by section 4 not to bo deemed an interrup- 
 tion, and the enjoyment has therefore been had for 20 years 
 next preceding the suit. ' 
 
 Illustrations to Sec. 7. 
 
 («.) In the same circumstances B pleads and proves disability 
 in that he was an infant for 14 out of the 20 years next pre- 
 ceding the suit. A cannot recover. 
 
 (b.) In the same circumstances B pleads and proves that B's 
 father was during two years out of the 20 years of enjoyment 
 by A diligently prosecuting a suit against A for trespass, which 
 suit abated on the death of B's father at the end of the two 
 years, and during the period of B's infancy. A cannot recover. 
 
 (c.) A brings an action of trespass against B in regard to the 
 use of a way over A's land. B claims an easement of way by 
 user for more than 20 years next preceding the suit. A replies 
 that a life estate for 5 years was interposed between the first 10 
 years and the last 5 years of enjoyment. But B shows that he 
 has enjoyed for full 25 years preceding the suit, or, deducting 
 the life estate, for 20 years, as required by the statute. A cannot 
 recover. 2 
 
 (d.) In a claim by A to the absolute right to an easement 
 under an enjoyment of 40 years, B pleads and shows that he 
 was an infant for 14 years of the period, and that for 2 years 
 of the period preceding this period of infancy his father was 
 diligently prosecuting a suit for trespass against A, which suit 
 abated on the death of B's father at the end of the two years. 
 
 These periods are not to be deducted, and A can recover if he 
 shows an enjoyment for the full period of 40 years next pre- 
 ceding the suit brought by him. 
 
 Illustrations to Sec. 8. 
 (a.) In a claim by A to the absolute right to an easement 
 
 1 Flight v. Thomas, 11 A. & E. 68S ; 10 L. J. Exch. 529 ; 
 
 affirmed in H. L. 8 CI. & F. 231. 
 
 2 This was held to be the correct construction of the section in 
 
 Clayton v. Corby, 2 Q. B. S13; 11 L. J. Q. B. 239.
 
 38 DIGEST OF THE LAW OF EASEMENTS. 
 
 under an enjoyment of 40 years, B pleads and proves that the 
 i ojoyment of A was first for 20 years followed by a lease for 
 15 years, and after the determination of the lease by an enjoy- 
 ment of 10 years next preceding tho suit, and that within 
 S years following tho determination of the lease for 15 years he 
 brought an action for trespass against A. 
 
 Here, although the entire period is 51 years, the term of the 
 lcaso must bo deducted, and the entire term of enjoyment is 
 reduced to 30 years. A cannot recover. 
 
 (b.) In a claim by A to the absolute right to an easement 
 under an enjoyment of 40 years, B pleads and proves that the 
 enjoyment of A was first for 20 years, followed by a lease for 
 15 years, and after tho determination of the lease by an enjoy- 
 ment for 10 years next preceding the suit ; but he fails to show 
 that within 3 years following the determination of the lease he 
 brought any action against A. The term of the lease therefore 
 is not deducted from the period of enjoyment by A. A may 
 recover. 
 
 § 40. An easement cannot be acquired under 
 the Prescription Act if the circumstances arc 
 such that no interruption of the enjoyment by 
 reasonable means is possible. 
 
 Illustrations. 
 
 (((.) A works mines under B's land without leaving any 
 support to the surface land. A claims to have acquired a right 
 by prescription so to work the mines as to leave no support to 
 the surface land of B. As no act is done upon the surface 
 which B. can resist or interrupt, tho right claimed cannot be 
 gained. 1 
 
 (A.) A has for more than 20 years continued to place cinders 
 in heaps upon his land abutting on a stream ; the cinders are at 
 last carried down the stream and damage the mill of B. A de- 
 fends the ad ion by saying that he has acquired a prescriptive 
 right BO to place the cinders as to risk their being carried down 
 and damaging B's mill. 
 
 As, however, \'< has had no power of resisting or interrupting 
 
 Blackett v. Bradley, 1 B. & S. 940 ; 31 L. J. Q. B. 05.
 
 DIGEST OF THE LAW OF EASEMENTS. 39 
 
 the practice of placing cinders on the bank of the stream, A 
 cannot maintain his claim to a prescriptive right, and his de- 
 fence is not sustainable. 1 
 
 (c.) B. has a mine, and with a view to get rid of an obstacle 
 to the working of the mine he makes a channel by which he 
 drains the mineral area in which the ore^ he. This channel and 
 the flow of water through it are continued for the convenience 
 of the mining operations for many years, and A applies the 
 stream after it issues from the mine to the purpose of turning 
 his mill. He continues to do so for more than 20 years. At 
 length, from the mineral ore above the level of the stream be- 
 coming exhausted, the flow of water through the channel ceases. 
 A brings an action against B, claiming a prescriptive right to 
 the continued flow of the stream. 
 
 B could not have interrupted the enjoyment of the stream by 
 A except by going to enormous expense in providing for the 
 water a different exit. 
 
 On this, among other grounds, (see § 2,) therefore, A cannot 
 maintain his claim to a prescriptive right. 2 
 
 § 41. As a prescriptive right equally at com- 
 mon law and, except in the case of light, under 
 the Act, proceeds upon the presumption of a 
 grant, and in all cases requires that the ease- 
 ment should have been enjoyed without inter- 
 ruption, thus pre-supposing a power of interrup- 
 tion and resistance,* an easement under a claim 
 of 20 years' enjoyment cannot be acquired 
 under the Prescription Act if at the commence- 
 ment of the period of 20 years the servient 
 owner was, by reason of incapacity (see the 
 
 1 Murgatroid v. Robinson, 7 E. & B. 391 ; 26 L. J. Q. B. 233. 
 3 Arkwrightv. GcU, 5 M. & W. 203; & 8 L. J. N. s. Exch. 201 . 
 * See as to this, Ilarbridgev. Warwick, 3 Exch. 552; 18 L. J. 
 Exch. 245. But see also Simper v. Foley, 2 Joh. & II. 555.
 
 40 DIGEST OF THE LAW OF EASEMENTS. 
 
 section on " Capacity"), disabled from making 
 a grant, or was otherwise not in a position to 
 transfer a present interest in the property, such 
 as would have rendered him capable of inter- 
 rupting or resisting the user. 
 
 Illustrations. 
 
 (a.) A claims an easement of way over the land of B. B, 
 prior to the date at which the enjoyment is said to have first 
 commenced, had leased the land over which the way is claimed, 
 toU. 
 
 At the time, therefore, at which the enjoyment commenced, 
 1 '» had no power to make a grant of the right of way. No pre- 
 sumption of a grant to A can arise, and A has not acquired the 
 easement claimed. 
 
 (h.) If, however, the enjoyment began before the lease, and 
 was continued during its term and afterwards, a grant may be 
 presumed and a prescriptive right under the Act may be ac- 
 quired. (See supra, sees. 7, 8.) 
 
 § 42. To enable a prescriptive right to be 
 acquired under the 2nd section of the Act the 
 easement must have been actually enjoyed by 
 any person claiming right thereto. 
 
 These words " actually enjoyed by any person 
 claiming right thereto" in sec. 2 of the Act have 
 been held to mean "actually enjoyed as of 
 right." ' But even though shown to have been 
 so enjoyed, the claim, except in the case of 
 light, is liable to be defeated by the common 
 law defences mentioned in pp. 18 and 19, ante. 
 
 1 Tickle v. Brown, 1 A. & E. 3G9.
 
 DIGEST OF THE LAW OF EASEMENTS. 41 
 
 Illustrations. 
 
 A was owner of a strip of land which had on one side of it a 
 wall, and heyond the wall some other land of A, and on tlio 
 other side of it some land of B. In 18.35, B had agreed to lay out 
 this strip as a street. From 1856 to 1881, some sheds built by 
 B as workshops had stood on the strip, with gables resting on 
 the walls. In 1864, B had covenanted with A to lay out the strip 
 of land as a street. A had, in 1861, conveyed to C the wall and 
 property on the other side of the wall. In 1877, A had con- 
 veyed to B the site of the intended street. In 1881, C pulled 
 down part of this wall, thus destroying B.'s shed. Held, that 
 up to 1877 B.'s enjoyment of support by the wall was pre- 
 carious, not as of right, but on sufferance, and that he had 
 not enjoyed for twenty years, as of right, as required by the 
 section. 1 
 
 A enjoys the convenience of a way over B's close, but takes 
 care that B has no knowledge that he uses it. 
 
 A enjoys the convenience of a way over B's close, but is care- 
 ful on each occasion to ask and obtain B's permission. 
 
 A has always been interrupted and resisted by B in the exer- 
 cise of his alleged right of way over B's close. 
 
 In all these cases, though A may have actually enjoyed as of 
 right, his claim is liable to be defeated under the section by any 
 of these common law defences. 
 
 Of Natural Rights and of Rights in Ease- 
 ments of Water, Ways, Air, Support and 
 Light. 
 
 § 43. Easements are abridgments of the 
 natural rights in property, or in the use of 
 unappropriated natural objects, as air and flow- 
 ing water, which right of use may, for prac- 
 tical purposes, be classed as property. 
 
 1 Tone v. Preston, 24 Ch. Div. 739; 53 L. J. Eep. Ch. 50.
 
 \2 digest of the law of easements. 
 
 Of Rights in Water. 
 
 .v.i 777,'.!/. eights to the use of water. 
 
 § 44. There is no property in the water of a 
 natural stream, except in the use of it in such 
 reasonable quantity as is abstracted from it; 
 and in that only so long as it is in possession. 
 
 The owner of an estate or property on the 
 bank of a natural and defined stream flowing 
 on the surface, or his agent or tenant, has a 
 right to the reasonable use of the water of the 
 stream, whether the use be in irrigation, in 
 manufacturing purposes, or in other purposes of 
 utility. 
 
 He has no inherent right as such owner, 
 agent, or tenant to obstruct the water of the 
 stream, or to transmit it, injured in quality, or 
 (in regard i<> quantity) diminished beyond an 
 extent consistent with a reasonable use. 
 
 What is a reasonable use is in every instance 
 a question dependent for its solution on the cir- 
 cumstances of the case. 1 
 
 1 Erribrey v. Owen, Excli. 353; 20 L. J. Exch. 212. 
 Medway Navigation Company v. th< : Earl of Eomney, 
 
 9 C. B. N. s. 575 ; 30 L. J. C. P. 236. 
 
 Sn-i/uli,,! \\',if, rirtir/;: ( '"in /hi it 1/ v. Wilts iiinl Berks ('mud 
 
 Navigation Company, L. E. 7 II. L. Cases, 097; 
 45 L. J. Exch. 038.
 
 DIGEST OF THE LAW OF EASEMENTS. 43 
 
 § 45. A riparian proprietor's right extends 
 only to the defined stream, and not to that por- 
 tion of the water which, though eventually by 
 percolation or otherwise it may reach and 
 supply the defined stream, does not as yet run 
 in a defined stream. 1 
 
 § 46. Mere diversion of water by an upper 
 riparian proprietor above the boundary of the 
 tenement of a riparian proprietor is not an 
 injury to the right of the latter, if the water so 
 diverted is returned to the stream before it 
 reaches his tenement. 2 
 
 § 47. The lower riparian proprietor may, 
 however, be injured by a more than reasonable 
 use of the water having been made after diver- 
 sion or before return. 3 
 
 NATURAL RIGHT TO ACCUSTOMED FLOW. 
 
 § 48. It is a natural right of every upper 
 and every lower riparian proprietor to have the 
 
 1 Broadbent v. Ramsbotham and another, 11 Exch. 603 ; 
 
 25 L. J. Excli. 115. 
 
 2 Kensit v. Great Eastern Ry. Co., 23 Ch. D. 566 ; 
 
 52 L. J. Q. B. 688. 
 And in App. L. E. 27 Ch. D. 122 ; 54 L. J. E. Ch. 19. 
 
 3 Embrey v. Owen, 6 Exch. 353; 20 L. J. Exch. 212. 
 Wright v. Hoivard, 1 Sim. & Stu. 190 ; 1 L. J. Ch. 94.
 
 I 1 DIQl BT OF ill i: LAW OF EASEMENTS. 
 
 stream flow on in its accustomed course, unob- 
 structed. 1 
 
 TUuetratio7i8. 
 
 A. a Lower riparian proprietor, dams up a Btream flowing pasl 
 B'fl grounds above to the grounds oJ A, ami thereby diminishes 
 the tall o! water to which B is entitled from the accustomed 
 flow of thr Btream ; or, 
 
 I:. ;i n upper riparian proprietor, dams up the water as it 
 
 passes his grounds, and so affects tho flow of it to the grounds 
 
 • i A. a Lower riparian proprietor. In each of these cases, the 
 
 ■ ■i damming up the Btream violates tho natural right of B 
 
 and A respectively to the accustomed and unobstructed flow of 
 
 earn. 
 
 § 49. The rules as to the rigiit to the use of 
 
 WATER AND TO ITS ACCUSTOMED FLOW apply also 
 
 to such natural streams as flow in a known and 
 defined course below the surface." 
 
 They do not apply to artificial streams, 3 or to 
 streams thai <!<> not flow on the surface, or in a 
 known and defined course below the surface, 
 I nit have their course in unknown and unde- 
 fined channels/ 
 
 1 Wright v. Howard, 1 Sim. & St. 190; & 1 L. J. Oh. 94. 
 
 Bampaon v. Hodinott, 1 0. B. x. 8. 590; 26 L. J. 0. P. 148. 
 • Implied in ChasemoreY. Richards, 7 II. L. 0. 349; 
 
 •J!) L.J. Bxch. Si. 
 
 i when a stream alleged to be partly artificial is to be 
 
 deemed a Datura] stream, see Roberts v. Richards, 50 L. J. Ch. 
 
 w< v. Biclnird*, 7 11. L. Cases, .'51!); &'J!)L. J. Exch.81.
 
 DIGEST OF THE LAW OF EASEMENTS. 15 
 
 NATURAL EIGHT TO PURITY OF WATER. 
 
 § 50. A proprietor by or through whose pro- 
 perty a .stream flows has a right, independenl 
 of an easement, to have the stream reach him 
 in a condition of purity. 1 
 
 It follows that a proprietor has no right to 
 pollute a stream to the prejudice of one to 
 whose property it flows, unless he has a right 
 of easement so to pollute it. 
 
 This rule is equally applicable to all natural* 
 streams, comprising 
 
 Defined or undefined surface streams ; 
 
 Underground streams with known or defined 
 courses ; or, 
 
 Water percolating through the soil in un- 
 known or undefined streams. 1 
 
 * It is conceived that it is also applicable to 
 all such artificial* streams. 
 
 ' Wood v. Waud, 3 Exch. 748; 18 L. J. Exch. 305. 
 Ballard v. Tomlinaon, L. E. 29 Ch. D. 115; 
 
 A pp. 54 L. J. Eep. Ch. 464. 
 - Ilodgldnson v. Em.or, 4 E. & S. 229 ; 32 L. J. (\. 15. 231. 
 3 Whaley v. Laing, 2 H. & N. 476 ; 20 L. J. Exch. 327 ; 
 
 and on appeal, 3H. &N. >'>~~> : ami 27 L. J. Exch. 122. 
 * This seems to follow from the broad character of the ruling 
 in Whaley v. Laiwj, in which it was held that when a person ifl 
 in possession of an artificial stream, although he has as yet 
 acquired no right of easement in it, nor any prescriptive right 
 to its uninterrupted flow, yet as against a person who. in tin' 
 absence of a right of easement, pollutes it to his detriment, he
 
 46 DIGEST OF THE LA.W OF EASEMENTS. 
 
 NATURAL RIGHT TO GET RID OF OR APPROPRIATE 
 
 SURFACE WATER. 
 
 $ 51. A person whose property is flooded 
 without any negligence of his, or on which 
 water lias casually collected, is entitled to get 
 rid of the water by letting it take its own 
 course, or by draining it off. 1 
 
 If he assists the subsidence of the water by 
 cutting trenches or otherwise, he must do so in 
 such a way as not to prejudice the rights of 
 others. - 
 
 § 52. A landowner has a right to appropriate 
 surface water which ilows over his land in no 
 definite channel, although the water is thereby 
 prevented from reaching a watercourse which 
 it previously supplied.' 5 
 
 vn 53. A riparian owner cannot, except as 
 against himself, grant a user of the water to 
 niic who is not a riparian proprietor, and any 
 user In - such person, whether under such grant 
 or not, is wrongful if it sensibly affects the 
 
 i^ injured by tin- pollution, and may maintain an action for the 
 injury. 
 
 Itaw Iron v. Taylor, U Exch. 369; 2-3 L. J. Exch. 83. 
 - 117/'///,// v. Lancashire and Yorkshire By. Co., 
 
 ]■:, (). B. D. 131; .'<:; L. J. a B. 285. 
 Broadbt nt v. Ramsbotham. 11 Exch. 602; 25 L. J. Exch. 115.
 
 DIGEST OF THE LAW OF EAflEMENTSi 17 
 
 quality or the flow of water passing by the 
 lands of riparian proprietors.' 
 
 OF EASEMENT* IN WAT Ell IIV (1/,'ANT AND J1Y 
 PRESCRIPTIVE RIGHT. 
 
 § 54. Easements may be acquired in water 
 in streams whether natural or artificial, and 
 whether constant or intermittent in flow, and 
 also in ponds, tanks and other collections of 
 water which have no flow or no appreciable 
 flow. 
 
 § 55. Easements may be acquired by express 
 grant to collections of or streams of water, 
 whether natural or artificial, whether flowing 
 or not, whether surface or percolating, whether 
 defined or undefined in course, and whether 
 constant or intermittent ; but by prescription 
 they may not be acquired over any streams but 
 those having defined courses, nor over any 
 collections of water but those which arc per- 
 manent. 2 
 
 Illustration. 
 
 There is a swamp on A's ground from which for more than 
 20 years water has percolated through the ground to a defined 
 stream which it has thus supplied. 
 
 1 Ormerod v. Todmorden Joint Stuck Mill Co., 
 
 App. L. E. 11 Q. B. D. 155 ; 52 L. J. Rep. Q. B. 445. 
 - Gaved v. Murtyn, 19 C. 13. n. s. 732.
 
 i s DIGEST OF THE LAW OF EASEMENTS. 
 
 A may drain ofl Che swamp; and B and others who claim a 
 prescriptive right in tho defined stream cannot claim that A 
 should leave the swamp standing on his ground. 1 
 
 He must, however, get rid of the water with due care, so as 
 not to cause injury to others' proporty.'- 
 
 § 56. Where water lias been conducted into 
 a defined channel with a flow of a permanent 
 character by artificial means, rights to the use 
 of it may be acquired by grant or by prescrip- 
 tion. 3 Whether the flow is of a permanent 
 character is a question of fact. 
 
 § 57. The character of the stream may be 
 permanent although intermittent : as a water- 
 course dug to supply a mill with water ; or 
 whether intermittent or not it may want the 
 character of permanency : as if a stream origi- 
 nates from the pumping of water from a mine. 4 
 
 § 58. The right to the uninterrupted flow of 
 water in a permanent artificial stream may be 
 acquired both against the originator of the 
 .stream and any person over whose land the 
 water flows. 
 
 II' the artificial stream is of a temporary 
 
 Uawstron v. Taylor, 11 ESxeh. 309; 23 L. J. Exch. 33. 
 -■ Whalley v. Lancashire and Yorkshire Hi/. Co., 13(J. 15. I ». 131 ; 
 
 53 L. J. Q. B. 285. 
 
 Powell v. Butler, 5 Ir. H. C. L. 809, 0. P. 
 1 /:•■ ton v. Weate, 5 B. & B. 986; 25 L. J. Q. B. LIS.
 
 DIGEST OF THE LAW OF EASEMENTS. 49 
 
 character, no right to the uninterrupted flow of 
 it can be acquired against the originator. 
 
 Though the artificial stream is of a temporary 
 character, and no right to the continuance of 
 the flow can be acquired against the originator 
 of it, yet while and so long as the water con- 
 tinues to be transmitted by the originator, such 
 a right may be acquired by prescription against 
 those through whose land the water has been 
 accustomed to flow. 1 
 
 § 59. The following rights may be acquired 
 as easements in natural and artificial streams. 
 
 THE BIGHT OF EASEMENT TO OBSTRUCT AND 
 DIVERT WATEB. 
 
 § 60. If a person, whether riparian owner or 
 not, has obstructed or diverted the water of a 
 defined natural or defined permanent artificial 
 stream, whether continuously or at regularly 
 recurring intervals, for the period and under 
 the other conditions required for the acquisition 
 of easements by prescription, he may thereby 
 acquire an easement against riparian owners 
 affected by his conduct. 
 
 1 Arkwright v. Oell, 5 M. & W. 203 ; S L. J. K. s. Exch. 201. 
 
 Gaved v. Martyn, 19 C. B. H. s. 732 ; 34 L. J. C. P. 353. 
 
 Greatrex v. Hayward, 8 Exch. 291 ; 22 L. J. Exch. 137. 
 I. D
 
 50 DIGEST OF THE LAW OF EASEMENTS. 
 
 Illustrations. 
 
 (a.) A has at particular times in the year for 20 years con- 
 tinuously, hy a cut in the bank and small channel, diverted the 
 ■water of the river to his tenement at a distance from the bank 
 of the river, on one of the banks of 'which, below the cut, B is 
 a riparian proprietor. 
 
 A may thus acquire a right by prescription to divert the 
 stream. 1 
 
 If the stream is artificial and temporary, A can acquire no 
 such right by so acting. 
 
 (b.) A has for 20 years obstructed and penned back a stream 
 so as to prejudice an upper or lower riparian proprietor, or has 
 for tho samo period caused the water to flow over the land of 
 such proprietor. A may in these cases acquire a title by pre- 
 scription to continue so to act- 2 
 
 THE RIGHT OF EASEMENT TO POLLUTE WATER. 
 § 61. A right to pollute water, and to trans- 
 mit it in a j)olluted condition, may be acquired 
 by prescription. The time begins to run to- 
 wards the acquisition of the right by pre- 
 scription from the period at which the pollution 
 becomes first perceptible, and prejudicially 
 affects the servient estate. . 
 
 1 Bealey v. Shaw, 6 East, 209 ; 
 
 & Wrl'jht v. Howard, 1 Sim. & St. 190; 
 
 & 1 L. J. Ch. 94. 
 3 Wright v. Howard, 1 Sim. & St. 190; 1 L. J. Ch. 94. 
 Bealey v. Shaw, G East, 209; 
 
 Mason v. /////, 3 I'.. & Ad. 304 ; 1 L. J. N. s. K. 15. 107. 
 Stockport Water Works Co. v. Potter, 7 H. & N. 160; 
 
 &31 L.J. Exch. 9. 
 Hotter v. Pom«j 8 L. B. Kxch. 107; 42 L. J. Exch. 85 ; 
 
 & L. It, 10 Exch. o0 ; 44 L. J. Exch. 52.
 
 DIGEST OF THE LAW OF EASEMENTS. 51 
 
 § 62. A prescriptive right to foul a stream is 
 only acquired after 20 years from the period at 
 which the degree of pollution which is claimed 
 commences to affect prejudicially the servient 
 estate. 1 
 
 See the effect of alteration of mode of enjoy- 
 ment, §§ 128 and 129. 
 
 Of Eights of Way. 
 
 easements of way. 
 
 § 63. Public rights of way are those which 
 
 every member of the community enjoys of 
 
 passing from one place to another by public 
 
 passages and ways. 
 
 Public rights of way do not depend upon the 
 situation of a tenement, and are not easements. 
 
 § 64. Private rights of way are abridg- 
 ments of the natural right of an owner of 
 landed property to exclude all persons from his 
 property. 
 
 They appertain to a person, or a body of 
 persons, either for the purpose of passing 
 generally, or for the purpose of passing to and 
 from a particular tenement of which such 
 person or persons may be possessed. 
 
 Such private rights of way as appertain to 
 
 1 Goldsmid v. The Tollbridge Wells Improvement Commissioners, 
 L. E. 1 Ch. 349; & 35 L. J. Ch. 3S2. 
 d2
 
 52 DIGEST OF THE LAW OF EASEMENTS. 
 
 persons without reference to a tenement are 
 not acquired for use of a tenement, and are 
 not, therefore, easements. 
 
 § 65. An easement of way may be general,, 
 that is, usable for all purposes connected with 
 passing to or from the dominant tenement ; or 
 limited to a particular mode of user. It may 
 be limited to particular occasions, or hours, or 
 times of the year. 1 
 
 The terms of the grant itself, or (if the ease- 
 ment or right is gained by prescription) the 
 mode of user during the prescriptive period, 
 must determine whether it is limited or not,, 
 unless it is expressly agreed to the contrary. 
 
 § 66. The owner of a private easement of 
 way can only enter upon that way at either 
 extremity, and not at any intermediate point. 2 
 
 § 67. A right of way appurtenant to a tene- 
 ment can only be used for the purpose of pass- 
 ing and repassing to and from the tenement. 
 
 Illustration. 
 
 A possesses a tenement near a highway, and has a private right 
 of way over the land intervening between the highway and his 
 tenement. Ho has also some land at a spot still further from 
 the highway, where ho is about to build a house. lie conveys. 
 
 ' Bradbum v. Morris, L. E. 3 Ch. Div. 812. 
 
 ( 'uwling v. Higginson, 1 M. & W. 215; 7 L. J. N. s. Exch. 2G5.. 
 
 Ballard v. Dyson, 1 Taunton, 279. 
 2 Wixxli/er v. Haddon, ~> Taunton, 125, see at p. 132.
 
 DIGEST OF TIIE LAW OF EASEMENTS. 53 
 
 bricks and other materials for building his houso by the private 
 way, first to the tenement to which he possesses the right of way, 
 and afterwards thence to the spot at which ho is about to build 
 a house. 
 
 In an action brought for damages for unauthorized use of the 
 way, it is a question upon these circumstances whether the way 
 was used for the purposes of the dominant tenement. 1 
 
 § 68. The use of a private right of way to 
 reach a highway, between which and the domi- 
 nant tenement it lies, is a use proper to the pur- 
 pose of passing from the dominant tenement, 
 whatever may be the ultimate purpose which 
 the occupier has in reaching the highway. 2 
 
 § 69. Ways which are appurtenant to a tene- 
 ment may be acquired by express grant, by 
 implied grant, or by prescription. 
 
 § 70. Such a right may be acquired by 
 express grant, 
 
 (a.) When the vendor of real property assigns 
 a right enjoyed by him over the neighbouring 
 tenement of a third person. 
 
 (b.) When the vendor of real property grants 
 the vendee a right of way over a part of such 
 portion of his property as the vendor retains. 
 
 i Skull v. Glenister, 16 C. B. N. s. 81 ; 33 L. J. C. P. 185. 
 
 Clifford v. Hoare, L. E. 9 C. P. 362 ; & 43 L. J. C. P. 225. 
 2 Colchester v. Roberts, 4 M. & W. 769 ; 8 L. J. N. s. Exch. 195.
 
 54 DIGEST OF THE LAW OF EASEMENTS. 
 
 As to acquisition by implied grant : — 
 8 71. If a dominant tenement is divided 
 between two or more persons, a right of way 
 appurtenant thereto becomes appurtenant by 
 implied grant to each of the severed portions, 
 provided that such distribution of the easement 
 is not at variance with the actual or presumed 
 grant under which the light has been acquired. 1 
 
 § 72. Except in the case of ways of neces- 
 sity, conveniences of way which had been used 
 between two portions of the same tenement 
 would not, on severance of such tenements and 
 sale of one portion of them, prior to the Con- 
 veyancing Act of 1881 coming into force (1st 
 January, 1882), pass to the vendee as appur- 
 tenant to the portion sold to him ; unless it 
 expressly appeared by the conveyance that such 
 rights of way as were previously enjoyed in 
 connection with the reserved tenement were 
 intended to be conveyed. But now, under the 
 Conveyancing Act of 1881, language to that 
 effect need not appear in the conveyance. Such 
 conveniences pass as appurtenant to the pro- 
 perty sold, without express mention of them as 
 passing with the property. 
 
 Codling v. Johnson, 9 B. & C. 933; 8 L. J. K. B. 68. 
 Bower v. 1 1 ill, 2 Bing. N. C. 33<J; b L. J. n. b. C. P. 17.
 
 DIGEST OF THE LAW OF EASEMENTS. 55 
 
 Illustration. 
 
 A sold to 13 a portion of his tenement. From the portion 
 which he reserves a path passed to the back gate of tho premises 
 embracing the portion of tho tenement sold to B, and had been 
 used and enjoyed with that portion. 
 
 B has a way to the front door of his tenement, and the way 
 by the back gate is not a way of necessity. 
 
 There are no words in the conveyance expressing that rights 
 of way previously enjoyed with the premises sold are inteuded 
 to be conveyed. 
 
 In conveyances executed since 31st December, 1SS1, such 
 words are unnecessary to pass the right of way to B. But in 
 the absence of such expression, in conveyances prior to the 
 1st January, 18S2, the way would not be held to have passed. 1 
 
 § 78. A way of necessity over the land of the 
 vendor is implied when there is no other way 
 to the tenement purchased except by passing 
 through the tenement of the vendor from which 
 the tenement purchased is severed, or by tres- 
 passing on that of a stranger. 2 
 
 1 Dodd v. Burchell, 31 L. J. Exch. 364 ; 1 H. & C. 113. 
 Pearson v. Spencer, 1 B. & S. 571. 
 
 Note. — As to what language has been held to convey con- 
 veniences used prior to the severance of tenements, 
 See Whalley v. Thompson, 1 B. & P. 371. 
 Barlow v. Rhodes, 2 L. J. N. s. Exch. 91. 
 Geogheghan v. Fegan, 6 Ir. B. C. L. 139, Exch. 
 Kay v. Oxley, L. B. 10 Q. B. 300; 44 L. J. Q. B. 210. 
 Bayley v. The Great Western By. Co., 
 
 (App.) L. E, 26 Ch. D. 434. 
 Note. — In Bartehire v. Grubb, IS Ch. Div. 616, the way 
 appears to have been a way of necessity, and it is not apparent 
 why a rectification of the conveyance was called for by the in- 
 sertion of general words expressing that rights of way previously 
 enjoyed were intended to be conveyed. 
 
 2 Serffy.- Acton Local Board, L. B. 31 Ch. D. 679 ; 
 
 55 L. J. Ecp. Ch. 569.
 
 56 DIGEST OF THE LAW OF EASEMENTS. 
 
 § 74. No grant can be implied of a way of 
 necessity through the tenement of a stranger. 
 
 Illustration. 
 A sells B a site for the express purpose of building a house. 
 B has no way to the site except over A's adjoining property. B 
 has a way of necessity over A's property. 1 
 
 § 75. When the land reserved by a grantor 
 on severance of tenements is on all sides sur- 
 rounded by the land granted, or is otherwise 
 only capable of being reached over the land 
 granted, a way of necessity over the land 
 granted is impliedly reserved. 2 
 
 § 76. When a right to a way of necessity 
 arises in favour of grantor or grantee, he has a 
 right to take the most convenient way. 
 
 Illustration. 
 
 "A had an acre of land which was in the middle and encom- 
 " passed with other of his lands, and enfeoffs B of that acre. B 
 " has a convenient way over the lands of the feoffor, and is not 
 " bound to use the same way that the feoffor uses," but may 
 tako any way convenient to the grantee. 3 
 
 §76a. As to the acquisition of rights of way 
 by prescription, see §§ 13 to 27, ante. 
 
 1 Daviea v. Sear, L. R. 7 Eq. 427 ; 38 L. J. Ch. 545. 
 
 2 See Pinnington v. Galland, 9 Exch. 1 ; 22 L. J. Exch. 34S ; 
 
 and numerous cases, Goddard, p. 328, 4th ed. 
 But also soo Huffidd v. Brown, 33 L. J. Ch. 249. 
 ■ ; Oldfiela'a Cose, Noy'a Reports, 123.
 
 DIGEST OF THE LAW OF EASEMENTS. 57 
 
 § 77. The way once ascertained cannot be 
 altered. 1 
 
 § 78. Although ordinarily the owner of a 
 private right of way is not authorized to deviate 
 from the particular road used, in exercise of the 
 right, even though it is out of repair, yet if the 
 right of way is rendered incapable of exercise 
 by the act of the grantor, he may take a 
 different route over the grantor's ground. 
 
 Illustration. 
 A has a right of way for a horse and cart over B's ground. 
 B contracts the width of the road and renders impracticable the 
 exercise of A's right. A may take a different route over B's 
 ground. 3 
 
 § 79. A private right of way cannot be ac- 
 quired over a public road already in existence 
 on a date previous to the date at which, either 
 by grant or by prescription, the private right 
 would otherwise be acquired. 
 
 Illustration. 
 A uses a private way in the grounds of B for 18 years and 11 
 months, in such a manner that if he continued to do so for the 
 full period required by the statute he might acquire a private 
 ri°ht of way. But at the end of the 18 years 11 months a public 
 right of way is acquired over the same ground. A cannot acquire 
 the private right of way. 
 
 1 Pearson v. Spencer, 1 B. & S. 571 ; 3 B. & S. 761 ; 
 
 4 L. T. K. s. 769. 
 
 2 Hawkins v. Carbines, 27 L. J. Exch. 44. 
 Selby v. Nettle/old, 22 W. E. 142. 
 
 d5
 
 58 digest of the law of easements. 
 
 Of Rights in Air. 
 natural rights in air. 
 
 § 80. There is no natural right to the unin- 
 terrupted flow of air to a tenement from an 
 adjoining tenement. 
 
 But the owner of every tenement has a right 
 to receive vertically the air appertaining to the 
 situation of the property. 1 
 
 The owner has a right to the free enjoyment 
 and use of such air as comes to him laterally or 
 vertically. 
 
 § 81. Everyone has a natural right to claim 
 that the air which passes his tenement shall not 
 be polluted. 2 
 
 " Unpolluted air" means air of such a degree 
 of purity that it is " not rendered incompatible 
 with the physical comfort of human existence." 3 
 
 The natural right to purity of air is qualified 
 as below : 
 
 Operations actually necessary for trade and 
 commerce, and also for the enjoyment of pro- 
 perty, and for the benefit of the inhabitants of 
 
 1 Airbed's Case, 9 Coke, 58. 
 
 Walter v. Selfe, 4 De Gex & Sm. 315 ; & 20 L. J. Ch, 434. 
 Bamford v. Twrnley, 3 B. & S. 66 ; 31 L. J. Q. B. 2.S6. 
 St. Helen's Smelting Co. v. Tipping, 11 H. L. C. 642 ; 
 
 35 L. J. Q. B. 66. 
 
 2 Crump v. Lambert, L. B. 3 Eq. p. 413. 
 
 3 Walk r v. Selfe, 4 Be Gex & Sm. 315 ; & 20 L. J. Ch. 434. 
 Tipping v. St. Helen's Smelting Co., L. B. 1 Ch. Ap. 66.
 
 DIGEST OF THE LAW OF EASEMENTS. 59 
 
 the town and the public at large, may lawfully 
 be carried on if they do not pollute the air so 
 as to cause material injury to property, or 
 health or comfort. 
 
 In determining whether the wrong is action- 
 able, consideration must be had of the circum- 
 stances in which the annoyance is caused, and 
 wdiether the discomfort and annoyance are 
 trifling, or such as to interfere seriously with 
 the ordinary comfort of human existence. 1 
 
 A man cannot excuse pollution of the 
 atmosphere by the fact that it is more or less 
 polluted by others. 
 
 BIGHTS OF EASEMENT IN AIR. 
 
 § 82. A right to the uninterrupted flow of 
 air can be acquired as an easement by grant 2 
 express or implied. It can be acquired also by 
 prescription at common law, 2 but not under the 
 Prescription Act. 3 
 
 1 St. Helen's Smelting Co. y. Tipping, 11 H. L. C. 142. 
 
 ■ Bass v. Gregory, 25 Q,. B. D. 4S1 ; 59 L. J. Q. B. 574. 
 
 3 Webb v. Bird, 10 C. B. N. s. 268 ; 13 C. B. N. s. 841 ; 
 
 30 L. J. C. P. 384 ; 31 L. J. C. P. 335, Exch. Cham. 
 Hall y. Lichfield Brewery Co., 49 L. J. Ch. 655. 
 
 But see § 24, ante, and foot note ; also the observations of Lord 
 iSelborne (Chancellor) noted at page 28, which afford strong 
 ground for questioning the correctness of the opinion of 
 Erie, C. J., in Webb y. Bird, restricting the application of the 
 . Prescription Act to easements of ways and water.
 
 CO DIGEST OF THE LAW OF EASEMENTS. 
 
 Illustration. 
 
 The cellar of A's public-house had been ventilated for forty 
 years by a shaft cut through a road into a disused well in an 
 adjoining yard. The enjoyment had been without interruption, 
 and with the knowledge of the occupiers of the yard. Held, 
 that A could claim the easement, and that a lost grant of the 
 right ought to be inferred. 1 
 
 § 83. A right to pollute air may be acquired 
 by grant or by prescription under the Prescrip- 
 tion Act. 2 
 
 Of Rights to Support. 
 the natural right to support. 
 
 § 84. Every man having land adjoining 3 or 
 over 4 that of another has a natural right to re- 
 quire the other to continue the support afforded 
 by the soil of his land. 
 
 1 Bass v. Gregory, 25 Q. B. D. 481 ; 59 L. J. Q. B. 574. 
 Note.— In Harris v. De Pinna (App.) L. B. 33 Ch. D. 238, 
 
 the opinion was expressed that the access of air had not been 
 through a sufficiently definite channel to entitle plaintiff to the 
 right. He claimed it to a structure erected for storing timber 
 open at both ends. The apertures for the reception of air varied 
 with the mode of storing the timber. 
 
 2 Elliotson v. Feetham, 2 Scott, 174. 
 
 Flight v. Thomas, 2 B. & D. 531 ; 10 A. & E. 590. 
 Crump v. Lambert, L. B. 3 Eq. 413. 
 
 3 Wyatt v. Harrison, 3 B. & Ad. 871 ; 1 L. J. N. s. K. B. 237. 
 Hunt v. Peake, Joh. 705 ; 29 L. J. Ch. 785. 
 
 * Humphries v. Brogdon, 12 Q. B. 739; 20 L. J. Q. B. 10. 
 Smart v. Morton, 5 E. & B. 30; 24 L. J. Q. B. 261. 
 Harris v. Bydmg, o M. & W. 60 ; 8 L. J. n. s. Exch. 181. 
 Rowbotham v. Wilson, 8 H. L. Cases, 348 ; 30 L. J. Q. B. 49.
 
 DIGEST OF THE LAW OF EASEMENTS. 61 
 
 Illustration. 
 
 If one parcel of land be conveyed, so as to be divided in point 
 of title from another contiguous to it, or (as in the case of mines) 
 below it, the status quo of support passes with the property in 
 the land, not as an easement held by a distinct title, but as an 
 incident to the land itself sine quo res ipsa haberi non debet. 1 
 
 He is not entitled to more support for his soil 
 than is necessary to prevent it, if unburdened 
 with buildings, from falling in. 2 
 
 The obligation is to abstain from interrupting 
 the ordinary enjoyment of land. Excavation, 
 therefore, may proceed to the fullest extent, so 
 long as disturbance does not take place. 3 
 
 If it is clear that the right to support is being 
 imperilled, the party liable to be injured may 
 obtain an injunction against further excavation. 4 
 
 The right and obligation continue the same 
 though buildings have been erected ; and an 
 action therefore lies against a person if the 
 excavation of the adjacent or subjacent soil by 
 him causes subsidence of land after buildings 
 
 1 Per the Lord Chancellor (Selborne) in Bolton v. Angus, 
 
 6 App. Ca. H. L. p. 791. 
 
 2 See notes 3 and 4 , p. 60. 
 
 3 Mitchell v. Barley Main Colliery Co., 
 
 L. E. 14 Q. B. D. 125 & 11 App. Cas. 127; 
 (App.) 53 L. J. Eep. Q. B. 471 ; 
 
 & H. L. 55 L. J. Rep. Q. B. 529. 
 
 4 Wakefield v. Buhe of Buccleuch, L. E. 4 Eq. 613 ; 
 
 36 L. J. Ch. 763.
 
 G2 DIGEST OF THE LAW OF EASEMENTS. 
 
 have been erected on it, provided that the 
 excavation would have caused it to sink in the 
 same manner had no buildings been erected. 
 
 § 85. A right of action dates from the period 
 at which sensible damage is sustained, 1 or from 
 any later period at which other damage occurs 
 from the same injurious cause. 
 
 Illustration. 
 
 A, in working coal under B's land, caused a subsidence of the 
 surface land between 186S and 1S71, and by agreement repaired 
 the mischief. No further working of coal took place there, but 
 in 1882 there was a further subsidence attended with damage. 
 An action was brought by B. for this later damage. 
 
 It was held (II. L.) that a fresh cause of action arose when 
 the damage occurred in 18S2. 
 
 Lord Halsbury, L.C., Lord Bramwell, and Lord Fitzgerald; 
 dissentiente Lord Blackburn. 2 
 
 Note. — The subsidence in the later instance of it would appear 
 to have depended entirely on the injury which caused the sub- 
 sidence between 1868 and 1871 ; but the effects of the injury 
 were not fully manifested until 1882, when the further sub- 
 sidence took place. The mischief which led to the siibsidencc 
 must still have continued at work after the repairs in 1S71, 
 although the ultimate effects were staved off until 1882. It 
 was one continuous injury. 
 
 THE BIGHT TO SUPPORT BY EASEMENT. 
 § 86. There exists a right of easement by 
 
 1 Bonomi v. Bachhome, 9 II. L. Cases, 503; 34 L. J. Q. B. 1S1. 
 
 - Mitchell v. Darky Main, Colliery Co., L. E. 14 Q. B. D. 125 ; 
 
 53 L. J. Eep. Q. B. 471 ; in appeal, H. L. L. B. 11 
 
 App. Ca. 127 ; bb L. J. Eep. Q. B. 529.
 
 DIGEST OF THE LAW OF EASEMENTS. 63 
 
 grant or prescription to the support of buildings 
 by the adjacent or subjacent soil. 
 
 There is no natural right to such support. 1 
 For the conditions under which the easement 
 may be acquired by Prescription, see the sections 
 on the subject. 
 
 A grant of land for the purpose of building 
 implies a grant of a right to support for such 
 buildings as the contemplated use of the land 
 may require ; 2 and a subsequent purchaser of 
 adjoining land from the grantor will be bound 
 by the implied grant. 3 
 
 Illustration. 
 
 One who conveys a house does by implication and without 
 express words grant to the vendee all that is necessary and 
 essential for the enjoyment of the house, and cannot derogate 
 from his grant by using his adjoining land so as to injure 
 what is necessary and essential to the house, as is the right of 
 support from the adjoining soil. 4 
 
 § 87. Two contiguous buildings built simul- 
 taneously must generally have been built with 
 the intention that they should derive support 
 
 1 Rogers v. Taylor, 2H.&N. S28 ; 27 L. J. Exch. 173. 
 Eejecting the opinions of Pollock, C. B., and 'Watson, B., 
 
 and following that of Cockburn, C. J. 
 
 See also, at § 25 note, supra, observations as to the case 
 
 of Dalton v. Angus, 6 App. Ca. 740; 50 L. J. Q. B. 689. 
 
 2 See Dalton v. Angus, 6 App. Ca. (H. L.) at p. 792. 
 
 3 Rigby v. Bennett, 21 Ch. Div. 559, C. A. 
 
 ■ i See dictum of Lord Blackburn, 6 App. Ca. H. L. p. S26.
 
 C4 DIGEST OF THE LAW OF EASEMENTS. 
 
 from each other. In such cases a right to the 
 support of one of them by the other will be 
 acquired as an easement by implied grant or 
 implied reservation on the grant of one of them 
 by the owner of both. 1 
 
 § 88. Where houses belonging to different 
 owners have been built contiguously, and have 
 become ancient, there is a right of support from 
 the building as well as from the land, and this 
 right of support can be claimed under the Pre- 
 scription Act. 2 
 
 § 89. Even where the circumstances are such 
 that the right to support of one of two such 
 buildings by the other does not exist, if one is 
 being removed, the owner is bound to use due 
 care to prevent damage to the other by the act 
 of removal. 3 
 
 § 90. One who has contributed to the sub- 
 sidence of his own land by excavation of the 
 subjacent or adjacent soil, or by burdening the 
 soil with buildings, has not on that account a 
 right to claim a degree of support greater than 
 he had before he did so from the person on 
 
 1 Richards v. Rose, 9 Exch. 218; 23 L. J. Exch. 3. 
 Riijhij v. Bennett, 21 Ch. Div. 559, C. A. 
 
 2 Lemuitre v. Davis, 19 Ch. Div. 281 ; 51 L. J. Ch. 173. 
 
 :; ( 'kadwick v. Trower, 6 Bint?. N. C. 1 : 8 L. J. n. s. Exch. 286.
 
 DIGEST OF THE LAW OF EASEMENTS. 65 
 
 whom the obligation lies not to remove the 
 support afforded by his land. 
 
 Rights to Light. 
 natural rights to light. 
 § 91. Everyone has a natural right to receive 
 vertically the light appertaining to the situation 
 of his tenement. 1 
 
 § 92. A person has no natural right to the 
 light laterally appertaining to the situation of 
 his tenement, i.e., he cannot rightfully prevent 
 others from building near his property so as to 
 obstruct or abridge the light so received. 
 
 Illustration. 
 A is owner of a house, some of the windows of which overlook 
 a piece of ground belonging to B, a railway company, and used 
 as a goods yard of B's railway station. A's house has been 
 built 16 years and A has enjoyed the light through its windows 
 during that period. B now puts up a screen to obstruct the 
 further enjoyment of the light by A. A cannot restrain B from 
 doing so, because he has not acquired an easement of light. 2 
 
 RIGHT OF EASEMENT TO LIGHT. 
 
 § 93. The easement of light consists in the 
 right to require the servient owner to abstain 
 from making, on his own tenement, any obstruc- 
 tion to the passage of light to the ancient win- 
 dows, or other means by which light is com- 
 
 1 Corbett v. Hill, L. B. 9 Eq. 671 ; 39 L. J. Ch. 547. 
 
 2 Bonner v. Great Western Ry. Co., 24 Ch. D. 1 ; 
 
 48 L. J. 619; 32 W. E. 190.
 
 <56 DIGEST OF THE LAW OF EASEMENTS. 
 
 mimicated from the direction of the servient 
 tenement to the dominant tenement. Such an 
 easement arises by implied covenant to abstain 
 from obstructing light. 1 
 
 § 94. Easements of light arise by express 
 grant, by implied grant, or by prescription. 
 
 § 95. The construction of the rights to ease- 
 ments by express grant must depend on the 
 terms of the grant. 
 
 EIGHTS OF EASEMENT IN LIGHT BY IMPLIED 
 GRANT. 
 
 § 96. Easements of light by implied grant 
 arise on severance of tenements in the same 
 way as other easements, when the intention is 
 implied of granting an easement together with 
 the property which is the subject of express 
 grant. 
 
 Illustrations. 
 
 A sells B a house with windows overlooking A's grounds ad- 
 joining. A has impliedly granted to B an easement of light over 
 his grounds to those windows ; • because this is a continuous 
 and apparent easement, used during unity and required for the 
 use of the tenement conveyed. 
 
 1 Tabling v. Jones, 11 H. L. Ca. 290 ; 34 L. J. C. P. 342. 
 - See Howry and Pope's Case, quoted by Lord Blackburn in 
 Dalton v. Angus, 6 App. Ca. 822, 823. 
 
 ( 'outts v. Gorham, Moo. & Mai. 390. 
 
 Palmer v. Paul, 2 L. J. Ch. 154. 
 
 Phillips v. Low, 1892, 1 Ch. 47; 01 L. J. Ch. 44. 
 
 Myers v. Catterson, 43 Ch. D. 470; 59 L. J. B. Ch. 315. 
 
 Wilson v. Queen's Chcb, 1891, 3 Ch. 522; 00 L. J. Ch. 098.
 
 DIGEST OF THE LAW OF EASEMENTS. 67 
 
 C sells one of two plots of land to A, and then the other to B. 
 The conveyance to B was prior, but it was held that in equity A 
 was the prior purchaser. B's plot had on it a house with win- 
 dows overlooking A's plot. A obstructed B's windows, and B 
 brought an action for an injunction to restrain A from doing so. 
 But, the sale to A being prior to that to B, B could not claim an 
 •easement of light by implied grant. 1 
 
 In 1875, A conveyed land to B and C for the erection of a 
 chapel. There was a covenant by the grantor that all the 
 windows looking out on the land of A should be of fluted or 
 ground glass. In February, 1878, the grantees commenced to 
 build the chapel with windows overlooking the land reserved by 
 A. A, in November, sold this land to D, who built so as to 
 obstruct the windows of the chapel. Held, that A and his 
 assigns were under an implied obligation not to obstruct the 
 windows of the chapel. 2 
 
 A, a testator, dies, leaving two sons, B and C. His trustees, 
 in accordance with his will, executed two separate, but contem- 
 poraneous conveyances, whereby they conveyed to B a piece of 
 the testator's land with two dwelling-houses on it, and to C 
 another adjoining piece of land with a warehouse at the further 
 end of it. Each parcel was sold with all lights thereunto 
 belonging. C's successor in title was restrained from building 
 on his land so as to obstruct his neighbour's Lights. 3 
 
 § 96a. If, in respect of a tenement, light 
 laterally received has been actually enjoyed 
 
 1 Beddingtoh v. Atlee, L. E. 35 Ch. D. 317 ; 
 
 56 L. J. B. Ch. 655. 
 See also Birmingham, Dudley, and District Banking Go. v. 
 Boss, 38 Ch. D. 295 ; 57 L. J. B. Ch. 601, in which no grant of 
 light was implied over the adjoining lands, as the plaintiff at 
 the date of the sale had notice that it was intended to build on 
 those lands. 
 
 2 Bailey v. Icke, 64 L. T. 789. 
 
 See also Russell v. Watts and others (H. L.), 
 
 L. B. 10 App. Cas. 590 ; 55 L. J. B. Ch. 158. 
 
 3 Allen v. Taylor, 16 Ch. D. 355; 50 L. J. Ch. 178.
 
 08 DIGEST OF THE LAW OF EASEMENTS. 
 
 for 20 years continuously* by the owner or 
 lessee of the property, he has a right by the 
 Prescription Act to continue to receive light 
 from the same direction without obstruction or 
 abridgment on the part of the owner or lessee 
 of a neighbouring tenement. (See the section 
 on Prescription as to the nature and limit of 
 the right.) 
 
 § 97. It is not necessary that the person 
 claiming, or in an action against him seeking 
 to maintain the right, should show that the 
 person desirous of abridging or obstructing it, 
 or those through whom he claims, had know- 
 ledge of the access of light to the tenement 
 during the period of user. (See § 34, ante.) 
 
 § 98. The right to light by reason of length 
 of enjoyment does not arise if there is an 
 express written agreement upon which the right 
 is made to depend, and by which the extent of 
 the right is limited or regulated. 
 
 § 99. The circumstance that the light pass- 
 ing, notwithstanding the obstruction, may be 
 .still sufficient to enable the owner of the domi- 
 nant tenement to carry on his ordinary avoca- 
 
 * fSco §§ 28, 32 and 35 as to what is not to be deemed an in- 
 terruption within the Act.
 
 DIGEST OF THE LAW OF EASEMENTS. 69 
 
 tions j 1 or that though the light is obstructed in 
 a certain degree in one direction, more light 
 than formerly reaches the tenement in another 
 direction, does not justify the obstruction of a 
 right to light. 2 
 
 § 100. A tenant of a house so built as to 
 obstruct a right to light, having a mere limited 
 interest in the house and not being entitled to 
 remove the obstruction, is not answerable for 
 continuing it. 3 
 
 § 101. A tenant of land who builds so as to 
 obstruct light, having himself directly caused 
 the obstruction, is answerable for the injury. 3 
 
 EXTENT OF USER OF EASEMENTS. 
 
 § 102. If a grant is wholly at variance with 
 an Act of Parliament it is void. If only partly 
 so it is good so far as it is not opposed to the 
 
 Act. 
 
 Illustration. 
 
 A, a corporation, is empowered by Act of Parliament to 
 make a water-course for certain purposes. After making the 
 ■water- course it grants away a certain portion of the water for 
 other purposes. The grant may be good to the extent of the 
 
 1 Yates v. Jack, L. E. 1 Ch. Ap. 295 ; 35 L. J. Ch. 539. 
 
 2 Dyers' Co. v. King, L. E. 9 Eq. 438 ; 39 L. J. 339. 
 
 3 Arnold v. Jefferson, Holt, 498.
 
 70 DIGEST OF THE LAW OF EASEMENTS. 
 
 •water remaining available after fulfilment of the purposes for 
 ■which the corporation was formed by the Act. 1 
 
 § 103. If a right of easement lias been granted 
 by deed the extent of the right is determined by 
 a construction of the deed. 
 
 Illustration. 
 
 A leases to B, granting B rights of drainage through A's ad- 
 joining property, but stipulates against the enlargement of the 
 buildings without A's permission. B purchases the reversion, 
 and the conveyance contains a similar right of drainage to that 
 contained in the lease. B subsequently enlarges his buildings. 
 The right of drainage having had reference to the house in the 
 state in which it was before the enlargement cannot be extended 
 so as to embrace the whole of the drainage of the enlarged 
 structure. 2 
 
 § 104. If an easement is granted for general 
 purposes it cannot be restricted to particular 
 purposes, so long as the purposes for which it 
 is used do not impose a greater burden on the 
 servient tenement than what was contemplated 
 at the time of the grant. 
 
 § 105. When a dominant owner possessing 
 an easement in respect of his tenement severs 
 
 1 AUorney-Cfeneral v. The Corporation of Plymouth, 9 Beav. 67 ; 
 
 15 L. J. Ch. 109. 
 - Wood v. Skimdm, L. E. 10 Ch. 582; 44 L. J. Ch. 514. 
 See also Firilinaon v. Porter, L. E. 10 Q. B. 188; 
 
 44 L. J. Q. B. 56. 
 / 'nil, J Ecvhd < '<<. v. Great Eastern By. Co., 10 L. E. Ch. 586 ; 
 
 44 L. J. Ch. 685. 
 Collim v. Slade, 23 W. E. 199, V.-C. B. .-.
 
 DIGEST OF THE LAW OF EASEMENTS. 71 
 
 that tenement, reserving a portion for himself 
 and selling a portion to a person, or several 
 divided portions to several persons, there may 
 arise the question whether the vendee, or all 
 the vendees, severally take with their several 
 purchases of the severed portion or portions of 
 the tenement any right in the easement pro- 
 portional or otherwise to the extent of the pur- 
 chase. 
 
 To determine this it is necessary to see 
 whether, by allowing the easement to be so 
 distributed among the vendor and the several 
 vendees, any greater burden would be imposed 
 on the servient tenement than that which may 
 have been granted or may be presumed to have 
 been granted. 1 If a greater burden would be 
 imposed upon the servient tenement by the 
 distribution it will not be allowed. 
 
 Illustrations. 
 
 («.) A has a large building with a right of way by easement 
 (not being a way of necessity) appurtenant to- it over B's land. 
 A parcels his building out into 100 portions and sells them to 
 99. persons, reserving one to himself. 
 
 The right of way is not conveyed to the 99 vendees, because 
 to permit this would be to permit a hundred people to pass by 
 the way in place -of one, which must necessarily increase the 
 inconvenience to the servient tenement and impose on it a 
 greater burden than may be presumed to have been granted. 
 
 Codling v. Johnson, 9 B. & C. 933 ; S L. J". K. B. 68. 
 ■ Bower y. Hill, 2 Bing. Nw Q. 339 j 5 L. J. N. s. C. P. 77.
 
 72 DIGEST OF THE LAW OF EASEMENTS. 
 
 (?».) In the same case A has an easement of light over B's 
 ground. The right is a right to have the light pass unobstructed 
 from the ground of B to 100 front windows in A's house. On 
 sale of 99 portions of the house by A to 99 vendees, each portion 
 containing a front window, a right to light to the windows' of 
 his purchased portion passes to each vendee, because this does 
 not imposo on the tenement of B any greater burden than before 
 existed. 
 
 § 106. The obligation of a servient owner in 
 respect of a right of way is that he shall not 
 unreasonably contract the width of the road or 
 render the exercise of the right of passing less 
 easy than it was at the time of the grant. 1 
 
 § 107. On the other hand, the dominant 
 owner is under an obligation not to enlarge the 
 use exercised under his right. 
 
 § 108. If a right has been acquired by pre- 
 scription, the extent of it must be determined 
 by the accustomed user. The accustomed user 
 is limited to the extent of the user at the com- 
 mencement of the period of user which, when 
 completed, gives a prescriptive right. 2 
 
 1 Hawkins v. Carbines, 27 L. J. Exch. 44. 
 - l' a itnl Land ('<>. v. Great Eastern By. Co., 
 
 L. E. 10 Ch. 586 ; 44 L. J. Ch. 685. 
 Wimbledon un<! Putney Commons' Conservators v. Dixon, 
 
 L. B. 1 Ch. Div. 362 ; 45 L. J. Ch. 353. 
 Bradburn v. Morris, L. E. 3 Ch. Div. 812, C. A. 
 i'r< Hey <i Si, us, Limited v. Lightowler, 
 
 L. E. 2 Ch. Ap. 478; 36 L. J. Ch. 584.
 
 DIGEST OF THE LAW OF EASEMENTS. 73 
 
 § 109. The measure of the degree to which 
 the right to pollute a stream is acquired is the 
 degree of pollution arising from the user as it 
 existed at the commencement of the period of 
 prescription. A subsequent enlargement of the 
 user had at the commencement of the period 
 does not avail to enlarge the right. 
 
 Illustrations. 
 
 («.) A transmits dirty water to the premises of B. He has 
 acquired a right by user of 20 years' duration to transmit clear 
 water. The extent of his right is to transmit clear water. 
 
 (b.) A has acquired a right to transmit water in a certain 
 degree of pollution to B's premises. He may not send water of 
 a higher degree of pollution than he has acquired a right to 
 send. 
 
 (c.) A, having previously acquired a right to foul a stream, 
 set up new factories in the place of those to which the right was 
 attached, and thus materially increased the degree in which the 
 water was fouled. The subsequent increase in the fouling of 
 the water might, if it were continued long enough, give rise to 
 a new prescriptive right to foul it to that extent, but the right 
 previously acquired is not thereby extended. 1 
 
 § 110. If, from the extent of user having been 
 gradually and imperceptibly increasing, it is im- 
 possible to measure definitely the extent of the 
 user at the period of its commencement, no 
 easement can be acquired. 2 
 
 i Crossley v. Lightoivler, L. E. 2 Ch. Ap. 478 ; 36 L. J. Ch. 5S4. 
 2 Goldsmid v. Tunbridge Wells Improvement Commissioners, 
 
 L. B. 1 Ch. Ap. 349 ; 35 L. J. Ch. 382. 
 I. E
 
 74 DIGEST OF THE LAW OF EASEMENTS. 
 
 § 111. An easement of light is not considered 
 to be altered in the extent of its use, so long 
 as the alteration to the windows or other aper- 
 ture through which light is received involves 
 no extension of the boundaries of the aperture, 
 but is solely confined to improved modes of 
 transmitting the light by alterations within the 
 boundaries of the aperture. 1 
 
 Illustrations. 
 
 {a.) A had two ancient windows made with small casements; 
 iu leaden lattices, which only opened partially. He removed the 
 casements and inserted plate glass in light frames, and made- 
 the windows open wide. 
 
 This is not an excessive exercise of the easement. 1 
 
 (b.) A sells B a house with windows overlooking A's grounds. 
 A has impliedly granted an easement of light over his grounds 
 to those windows. B, after purchase, materially alters the 
 windows by enlargement, and also opens new windows. 
 
 Here the extent of the use is altered. 
 
 A may build so as to obstruct the light to the new windows, 
 and may also build so as to obstruct the light to the enlarge- 
 ments of the old windows, if ho can do so without obstructing 
 the light which B is entitled to receive through the former 
 extent of the enlarged windows. - 
 
 § 112. A servient owner has a right to ob- 
 struct the enjoyment of an easement where 
 that enjoyment is in excess of the right of the 
 
 1 Turner v. Spooner, 1 Dr. & Sm. 407 ; 30 L. J. Ch. 801. 
 - JU<inrhur:l v. Bridges, 4 A. & E. 170; 5 L. J. n. s. K. B. 78. 
 
 Chandler v. Thompson, 3 Campb. 80. 
 
 TapUng v. Jones, 11 H. L. 0. 290; 34 L. J. C. P. 342.
 
 DIGEST OF THE LAW OF EASEMENTS. 75 
 
 owner of the dominant tenement. He may 
 obstruct it to the extent which is necessary to 
 enable him effectually to prevent the excessive 
 enjoyment, but no further. 
 
 Illustration. 
 
 A has a right of easement to send clean water through B's 
 
 drain. He sends dirty water. Here B cannot obstruct the 
 
 enjoyment by A of his easement in excess of his rights without 
 
 stopping the water entirely. He is therefore entitled to do so. 
 
 Explanation. — By excessive enjoyment is 
 meant enjoyment which imposes or tends to 
 impose a greater burden upon the servient 
 tenement than is authorized by the express or 
 implied grant. 
 
 Illustration. 
 A has by 20 years' enjoyment acquired an easement to the use 
 of light to his tenement through several ancient windows. The 
 light passes over the open land of B, and B has been hitherto 
 bound not to build so as to obstruct the light passing to the 
 windows. A afterwards enlarges his windows. Here A does 
 not by this act impose any further burden upon the servient 
 tenement of B, because the enlargements do not at present lay 
 B under any increased obligation to abstain from building. But 
 by 20 years' enjoyment of the access of light through the enlarge- 
 ments of the windows, A would acquire the right to prevent B 
 from building so as to shut out the light from the enlargements. 
 This act, therefore, tends to impose on B a greater burden than 
 before, and results in an excessive enjoyment of the easement. 
 And B, exercising the right he already has of building on his 
 own land, may build so as to obstruct the enlargements ; but if 
 he does so, he must avoid obstructing the ancient lights. 
 
 Note. — The right to obstruct light possessed by an owner of 
 a servient tenement is simply his right of building on his own 
 
 e2
 
 7»; DIGEST OF THE LAW OF EASEMENTS. 
 
 § 113. A Bervienl owner can only obstrud 
 the right of easement on his own ground. If 
 it is Impossible to obstrucl the excessive exercise 
 of tin- right without going on to the premises 
 of the dominanl owner he must obtain redress- 
 by legal proceedings. 
 
 OF THE INCIDENTS OF EASEMENTS. 
 
 ^ 114. In the absence of express stipulation 
 in the instrument, if any. creating the easement, 
 no obligation to repair that by which the 
 enjoyment of the easement is held lies on the 
 gen Lenl tenement. 
 
 Illustrations. 
 
 The owner "f the highway (Stockporl and Hyde Highway 
 Board has acquired a right of Bupport to the highway by a wall 
 belon • ' B. It the wall is out of repair B La ool bound to 
 repair it. The owner of 1 1 » • * highway Lb.' 
 
 A having an easemenl oi private way has no ii.L r lit to leave it 
 and take another on account of the want of repair. He has a 
 
 land, and the ■ w windows by the owner of the 
 
 dominant tenement aeithei oonfi rs aor enlarges such right. 
 
 Tapling v. Joru . -' / ra, p. 74. 
 The case of Fowlers ▼. Walker, 51 L. J. Gh. 143, C. A. affirm- 
 19 ] J. I ool in conflicl \\ ith Tapling v. Jo\ 
 
 m i. in which the facte were thai three old 
 
 small windows bad been pulled «l<»\vn, and 
 
 a In with three Large windows lia<l 1 a built on 
 
 .''■!•■ i •. idi i to the position of the 
 
 windows in th< . and the i xtenl "I the eas< mi al of li;_ r lit 
 
 ■ 
 
 /!■■!■ Highway /.'<•<//■./ v. Grant, 
 
 ..l I.. .1. m. B. 35i ; 16 I.. T. 388.
 
 DIGEST OF THE LAW OF EASEMENTS. 77 
 
 right to repair it himself, butthoro is no obligation ou the owner 
 of the servient tenement to repair it.' 
 
 § 115. If the enjoyment of the easement is 
 had by means of artificial works, the owner of 
 the dominant tenement is liable for damage to 
 the servient tenement arising from their non- 
 repair. When the easement is independent of 
 artificial works, and the injury to the servient 
 tenement arises from natural causes only, no 
 such liability accrues. 
 
 § 116. In what is necessary for the enjoy- 
 ment of the easement the owner of the dominant 
 tenement may do everything that is required 
 for the full and free exercise of his right. 
 
 Illustration. 
 
 A has a right to an uninterrupted flow of water through tho 
 land of B by means of pipes. This right carries with it tho right 
 to enter upon B's land for the purposo of cleaning and repair- 
 ing and otherwise preserving the pipes. 1 
 
 OF THK EXTINGUISHMENT OF EASEMENTS. 
 § 117. Easements may, of course, be extin- 
 guished by the provisions of an Act of Parlia- 
 ment. As, for instance, sec. 20 of the Artisans' 
 
 * Blackstone mistakenly lays it down that the owner of tho 
 dominant tenement haying a right of private way may abandon 
 it for want of repair and take another. 
 
 1 Goodhart v. Hyctt, 53 L. J. x. s. Ch. 219; 32 W. E. 16o.
 
 78 DIGEST OF THE LAW OF EASEMENTS. 
 
 Dwellings Act, 1875, provides that on the pur- 
 chase of lands by a local authority for the 
 purposes of the Act all rights of way and all 
 other rights or easements in or relating to such 
 lands shall be extinguished; compensation being 
 given to persons who have sustained loss by the 
 operation of the provisions of this section. 
 
 Illustration. 
 
 In 1867, A erected buildings on his property. In 1888, 13, 
 the lessee of land opposite A's building, whose landlord was 
 the local authority, erected buildings which obstructed the light 
 which A's windows had received since 1S67. The land had been 
 purchased by the local authority under the Artizans' Dwellings 
 Act, and A could not maintain an action for damages for the 
 obstruction, but was entitled to compensation. The easement 
 ho had acquired was extinguished. 1 
 
 § 118. Some of the modes by which ease- 
 ments may be lost correspond with those already 
 Laid down for their acquisition. 
 
 ( Jorresponding to — 
 the i sprees grant, is the express renunciation, or 
 
 whero tho grant was for 
 ,i particular purposo, the 
 cessation of tho purposo ; 
 the disposition by tho owner ,, tho merger by union of 
 
 <ii two tenements, them ; 
 
 the easement oi necessity, ,, tho cessation of tho neces- 
 
 sity ; 
 acquisition by prescrip- ,, the abandonment by non- 
 tion, user. 
 
 1 Barlow v. Row, App. L. EL 24 <». B. D. 381 ; 
 
 59 L. J. Rep. Q. B. 183.
 
 DIGEST OF THE LAW OF EASEMENTS. 79 
 
 § 119. A private right of way is not extin- 
 guished by the acquisition by the public of a 
 public right of way over the same ground. 
 
 Illustration. 
 
 A has already acquired a private right of way. A public 
 right of way is afterwards acquired over the same ground. The 
 private right is not extinguished. 
 
 § 120. Although a private right of way is 
 not extinguished by the acquisition by the public 
 of a public right of way over the same ground, 
 it may be a question, in every case of the kind, 
 whether the dominant owner has not abandoned 
 his private right of way. 1 
 
 The question whether, in such a case, the 
 private right of way still exists or not, is of 
 importance only in regard to the remedies for 
 injury to the right. 
 
 § 121. An action will not lie by an individual 
 for damages for injury to him in his right, as 
 one of the public, to use a public right of way, 
 unless he has sustained special damage. 
 
 The ordinary remedy is by indictment ; 
 whereas an action lies by anyone injured in 
 his right to use a private right of way, without 
 any special damage. 
 
 1 Reginay. Chorleij, 12 Q. B. 515.
 
 so digest of the law of easements. 
 
 Extinguishment by Express Release. 
 § 122. This must be under seal to be effec- 
 tual. Acts of Parliament by which easements 
 are destroyed, as, for instance, the General In- 
 closure Act, 41 Geo. III. c. 109, s. 8, have the 
 operation of express releases. 
 
 Extinguishment by Merger. 
 § 123. By union of the two tenements in 
 one owner, the special land of property which 
 an casement is, becomes merged in the general 
 rights of property. 
 
 Illustrations. 
 (<i.) B has an casement of right of way (not being a way of 
 necessity) over the tenement of A, which adjoins B's tenement. 
 1'. purchases A's tenement and then immediately sells it to C. 
 The right of way which B possesses over the adjoining tene- 
 ment becomes merged by the purchase by B of A's tenement, 
 and onless B, in selling to C, reserves the right of way, he can 
 no longer claim to exercise it. 
 
 (/'.) Ji has an easement of right of way (not being a way of 
 -ity} over the tenement of A, which adjoins B's tenement. 
 A pnrchfl I B\- tenement and then immediately sells it to C. 
 1 [ere (he right »>t' way, hx\ ing l»een merged in the general rights 
 of property, cannot be claimed by C unless expressly granted. 
 (r.) B has an easement of right <>f way (not being a way of 
 my over the tenement of A, which adjoins B's tencmont. 
 B purchase - A'- tenement and then immediately sells his own 
 men! to<'. 0, for the same reason as in illustrations (a.) 
 '■. . cannol claim the right of way. If, however, any in- 
 terval elapsed between the merger and sale in (a.), (b.), and (c), 
 during which the convenience of the way between the two tene- 
 ments had been used and enjoyed therewith, section b' of tho 
 < lonveyancing A<\ of 1881 mighl operate to pass the convenience 
 as an easement without express granl or reservation.
 
 DIGEST OF THE LAW OF EASEMENTS. 81 
 
 § 124. Easements do not become and continue 
 dormant or latent when two tenements are so 
 united ; nor are they revived on the subsequent 
 severance of the tenements ; but in the case of 
 easements of necessity and other easements, of 
 which a grant will be implied on severance of 
 tenements, they arise newly with and conse- 
 quent upon the severance. 
 
 Illustration. 
 In the illustrations (a.), (&.), and (c.)to§ 123, if the way is a way 
 of necessity, the easement becomes merged by the purchase, but 
 arises again on severance of the tenements by the sale to C. 
 
 § 125. Rights attaching to a tenement by 
 reason of its situation, generally termed 
 " Natural Rights," are never extinguished. 
 
 If obstructed for a time by the possession of 
 an easement by some person other than the pos- 
 sessor of the natural right, they are only sus- 
 pended, and are revived on extinction of the 
 easement, either by unity of possession or 
 otherwise. 
 
 Natural rights, in actual exercise by A as 
 against B, can never be merged or lost by 
 unity of possession of the two tenements in 
 right of which the natural right is exercised. 
 
 Illustrations, 
 (a.) A, a riparian proprietor, dams up a stream and acquires 
 an easement to obstruct the flow of water to B's tenement on 
 the bank of the stream. Afterwards A buys B's tenement and 
 
 E 5
 
 Nj DIGEST OF THE LAW OF EASEMENTS. 
 
 thus extinguishes the casement. IIo thou sells B's tenement 
 to C. C lias a natural right, or a right by vicinage, to the 
 unobstructed flow of water. 
 
 (6.) A had a natural right to the flow of water of a stream on 
 which 13, higher up, but adjoining A's tenement, was also a 
 riparian proprietor. A purchased B's tenement and then sold it 
 to 0. A. by the union of tho two tenements, did not lose his 
 natural right to tho unobstructed flow of water. 1 
 
 (c.) Two closes, x and y, adjoin. Tho owner of x is, by pre- 
 scription, bound to fence his close. The owner of y purchases x. 
 The obligation to fence is thus extinguished. lie dies leaving 
 two daughters, to whom tho property goes. They make a parti- 
 tion, tho one taking the one close, tho other, the other. The 
 obligation to fonce is not revived, because the right to have a 
 neighbouring close fenced off is not a natural right, but an 
 casement. 2 
 
 Exception. — Easements are not merged by 
 union of the two tenements in one owner, if 
 the two tenements are estates which are not 
 co-extensive : as a tenement in fee and one for 
 life. But the right of easement is in such case 
 suspended. 8 
 
 Exti M . i i e 1 1 m i:nt by Cessation of Purpose. 
 
 § 126. I £ an easement has been granted for 
 a particular purpose, or has arisen out of the 
 enjoyment <>f a right for a purpose which no 
 longer exists, the easement ceases. 
 
 i /w// v. /'•'■/■■it, I'opham's Reports, 1GG. 
 (See alflO in Tudor' h L. ('. on tho Law of Real Property.) 
 
 - Dictum in Bury v. PigoM, approved in Woody. Wand. 
 
 ■ Jamet \. Plant, l A. & B. 749; L. J. n. s. Exch. Cham. 260.
 
 DIGEST OF THE LAW OF EASEMENTS. 83 
 
 Illustration. 
 
 A canal company formed by Act of Parliament has a right to 
 a water- course granted to it by another company for the supply 
 ■of the canal. Afterwards the canal company is reconstituted by 
 Act of Parliament as a railway company, and they then sell to 
 A their canal property, including their water right. The canal 
 •company haying ceased to exist, their water right has also 
 ceased, and A cannot claim to exercise it. 1 » 
 
 Extinguishment by Cessation of Necessity. 
 
 § 127. Easements of necessity cease when 
 the necessity itself ceases. 
 
 Illustration. 
 
 A has a way of necessity over C's close. Subsequently A 
 purchases adjoining property through which he has access to 
 his own close. 
 
 A's way of necessity over C's close ceases. 2 
 
 Extinguishment by Alteration of Mode of 
 Enjoyment. 
 
 § 128. Except in the case of easements of 
 light acquired by prescription, if the owner of 
 the dominant tenement alters, substantially, 
 the character of the enjoyment with reference to 
 which the easement was expressly or impliedly 
 granted, the easement is extinguished. 
 
 1 .National Guaranteed Manure Co. v. Donald, 4 II. & N. S ; 
 
 28 L. J. Exch. 185. 
 
 2 Holmes v. Goring, 2 Bingham, 76 ; 2 L. J. C. P. 134.
 
 8 1 DIGEST OF THE LAW OF EASEMENTS. 
 
 Illustrations. 
 ('i.) A right of way La granted for the purpose of being used 
 aa a way to a cottage. 
 The cottago is changed into a tanyard. Tho right of way 
 
 (l>.) A has a right that tho water of his roof shall drop from 
 the eaves of his house into his neighbour's yard. The right is 
 not lost by reason of lus raising the height of his house so that 
 the drops have a greater distance to fall, as this is not a sub- 
 stantial alteration. 
 
 § 129. This effect takes place even though 
 the burden imposed on the servient tenement 
 is l>v the alteration in the mode of user rendered 
 Less than before. 
 
 Illustration. 
 
 A had an easement of polluting water with tho refuse of a 
 fellmongery, by enjoyment from 1S.'52 to 1S77. In 187S, the 
 fellmongery was abandoned, and a different manufacture, that 
 of leather boards, substituted, tho refuso of which polluted the 
 water lees. It was held in a proceeding before tho Drainago 
 < 'immii>si<>ners, and the decision was affirmed in appeal to 
 Quarter Sessions, that if A had acquired a right to pollute the 
 river, it was as a tellmonger, and not as a leather board manu- 
 facturer, and that In- could no longer claim tho right to pollute 
 tho water, even though the present pollution was less burden- 
 Bome than that of the fellmongery. 3 
 
 A mere diminution in the burden imposed by 
 the original mode of user, such as had been 
 
 1 Illn iven by Baron Parke in Henningy. Burnet, 
 
 8 Exch. 1ST; 22 L. J. Exch. 79. 
 - chirk- v. Somersetshire Drainage Commissioners, 
 
 o7 L. J. It. ; M. C. 9G.
 
 DIGEST OF THE LAW OF EASEMENTS. 85 
 
 'enjoyed from the starting point for prescription, 
 without any alteration in the mode of user itself, 
 will not entail this effect, though the right to 
 the disused portion of the extent of user would 
 be liable to be lost by lapse of time. 
 
 Extinguishment by Necessary Consequence of 
 Act by Dominant Owner. 
 
 § 130. When the dominant owner authorizes 
 an act of a permanent nature to be done on the 
 servient tenement, the necessary consequence 
 of which is to prevent his future enjoyment of 
 the easement, and the permission is acted upon, 
 the easement is thereby extinguished. 1 
 
 Extinguishment by Abandonment. 
 
 § 131. Easements may be extinguished by 
 abandonment. Whether an easement has been 
 •abandoned or not may be determined from the 
 ■circumstances of the case. 
 
 Illustration. 
 
 A had some ancient windows. He pulled down the wall in 
 which, they were and built it up blank. It continued thus for 
 17 years. Then B built up a wall opposite to it, and after three 
 years A opened a window in his wall, and brought an action 
 against B for obstructing his light. 
 
 The alteration made by A in pulling down his wall and build- 
 ing it up blank was of such a character that it was open to the 
 
 1 Liggins v. Inge, 7 Bingham, 682 ; 9 L. J. C. P. 202.
 
 DIGEST OF THE LAW OF EASEMENTS. 
 
 Court to determine that ho had abandoned his right of ease- 
 ment. 1 
 
 § 132. As already observed at § 93, p. G5, 
 the easement of light consists in the right to 
 require the servient owner to abstain from 
 making, on his own tenement, any obstruction 
 to the passage of light to the ancient windows 
 or other means by which light is communicated 
 from the direction of the servient tenement to 
 the dominant tenement. Such an easement 
 arises by implied covenant to abstain from 
 obstructing light. 
 
 The rule, however, as to extinction is the same 
 as in the case of casements which consist of a 
 right to require the servient owner to submit 
 to the dominant owner doing an act on the 
 i. lit tenement, viz., that the casement is 
 extinguished on the cesser of use, coupled with 
 any act clearly indicative of an intention to 
 abandon the right. (See Illustration to § 131.) 
 
 § 133. Alteration in the mode of enjoyment, 
 as has been intimated (§ 128), does not, in the 
 case of easements of light acquired by prescrip- 
 
 1 Moon v. Rawaon, '.1 13. & C. 382, 
 
 Note. ' breater difficulties may arise in tho case of what may 
 
 nifiits of [distention (generally called negatives 
 
 . in determining whether abandonment has taken 
 
 L cases simply a <niostion on tho facts 
 
 fh1 baa been abandoned.
 
 DIGEST OF THE LAW OF EASEMENTS. 87 
 
 tion, work an extinguishment of the easement, 
 even wlien such alteration may eventually by 
 continued enjoyment become prejudicial to the 
 servient owner (see Tabling v. Jones). 
 
 Illustrations. 
 
 A has throe cottages containing ancient lights. lie pulls 
 them down, and erects a largo warehouse with large windows. 
 In afterwards suing for a remedy against the servient owners 
 for huilding so as to "block the light coming to his ancient win- 
 dows, he is unable to offer trustworthy evidence as to the exact 
 position of the ancient windows with reference to the new 
 windows, and cannot maintain his easement as to the new 
 building. 1 Here there was no extinguishment of the easement, 
 though the alteration had rendered it impossible to prove the 
 extent of it. 
 
 A had ancient lights in some old buildings which he pulled 
 down in 1872. He re-erected the buildings with a greater 
 number of windows, some of them of a larger size than before. 
 Portions of the new windows were in positions corresponding 
 with portions of the old windows. The right was not extin- 
 guished, and A obtained an injunction against the obstruction 
 by B of the bight passing to the portions of the new windows 
 which corresponded with the old. 2 
 
 § 134. If a person having an easement of 
 light does any act which induces the owner of 
 the servient tenement to entertain a reasonable 
 belief that he has abandoned his easement of 
 
 1 Folders v. Walker, 51 L. J. Ch. 443, C. A., 
 
 affirming 49 L. J. Ch. 598. 
 See also Pendarves v. Monro, (1892) 1 Ch. 611. 
 
 2 Scott V. Pape, 54 L. J. Ch. 914 ; 
 
 affirmed in App. L. E. 31 Ch. D. 554 ; 
 
 55 L. J. E. Ch. 426.
 
 88 DIGEST OF THE LAW OF EASEMENTS. 
 
 light, and the owner of the servient tenement 
 in consequence incurs expense in building in 
 such a manner as tends to obstruct the passage 
 of light to the dominant tenement, the owner 
 of the dominant tenement is estopped from 
 saying that he has not abandoned his easement, 
 unless he is willing to make a fair compensation 
 to the owner of the servient tenement for the 
 expense incurred. 
 
 Illustration, 
 
 A has a warehouse with ancient windows guarded by iron 
 bars. He blocks up the windows with rubble and plaster, but 
 leaves the bars outside. 
 
 The windows are so left for 19 years. The owner, B, of the 
 servient tenement then builds so as to obstruct the passage of 
 light to the dominant tenement. Even though A is not found 
 to have intended to abandon his right to light, yet if his act has 
 been such as to induce in B a reasonable belief that he had done 
 so, and has led B to incur expense, he is estopped from saying 
 that ho had not abandoned his right, unless he compensates B 
 for the expense incurred. 1 
 
 i StoJcoe v. Singers, 8 E. & B. 31 ; 26 L. J. Q. B. 257. 
 
 Xote. — This rule belongs nioro properly to the law of estoppel, 
 which is not part of the law of easements. But in drawing 
 out digests of different parts of the law, and until the whole 
 Liw is so dealt with, it will be found that portions here and 
 there must overlap. See as to this rule of estoppel Cornish v. 
 Abington, which is in advance of Pickard v. Sears, inasmuch as 
 the rule in the latter case required that the party estopped should 
 In' found to havo intended to make the other party believe and act on 
 //,< belief. In Cornish v. Abington, 4 Hurl. & N. 549; 28 L. .7. 
 . 262, it waa held to be sufficient to show that the party 
 estopped had, by bis negligent conduct, though without inten- 
 tion, deceived the other into a belief on which he acted so as to 
 change hi- -it nation.
 
 DIGEST OF THE LAW OF EASEMENTS. 89 
 
 § 135. As to discontinuous or intermittent 
 •easements, if there is direct evidence of an 
 intention to abandon the right, it may be 
 shown to be abandoned after any the shortest 
 period of non-user. But if the evidence is of 
 an indirect character, non-user for twenty years 
 is requisite to prove abandonment. 1 
 
 § 136. An easement may also be extinguished 
 by the licence of the owner of the dominant 
 tenement. 2 
 
 OF THE DISTURBANCE OF RIGHTS ARISING BY 
 SITUATION AND OF RIGHTS OF EASEMENT. 
 
 § 137. The rights to transmit impure air, 
 
 impure water, 
 disagreeable 
 noises, 
 into the neighbouring property are rights which 
 can only be acquired by grant, express or im- 
 
 1 Doe v. Hilder, 2 B. & A. 791. 
 Moore v. Raiuson, 3 B. & 0. 332. 
 Holmes v. Buckley, 1 Eq. Cas. Abr. 27. 
 Payne v. Shedden, 1 Moo. & Rob. 382. 
 The Queen v. Chorley, 12 Q. B. 515. 
 
 Ward v. Ward, 7 Excb. 838; 21 L. J. Excb. 334. 
 
 Lovell v. Smith, 3 C. B. N. 8. 120. 
 
 Hall v. Swift, 6 Scott, 167 ; 4 Bingb. N. C. 381 ; 
 
 7 L. J. n. s. C. P. 209. 
 Norhury v. Meade and others, 3 Bligb. 241. 
 
 2 See § 162, Exception 1.
 
 90 DIGEST OF THE LAW OF EASEMENTS. 
 
 plied, or by prescription, and are therefore ease- 
 ments if appurtenant to a tenement and existing 
 for the convenience of that tenement, and in 
 other respects satisfying the conditions of an 
 easement. 
 
 § 138. But no easement can be acquired by 
 prescription, either at Common Law or under 
 the Prescription Act, of a user which is neither 
 physically prevcntible nor actionable. 1 
 
 Illustration. 
 In 1S73, A, a medical man, built a consulting room on a 
 portion of his premises adjoining the premises of a confectioner, 
 B, who by the use of machinery in his business transmitted 
 noise and vibration into the premises of A. A brought an action 
 in 1879 against B for an injimction on account of the disturb- 
 ance. The noise could not in its nature have been interrupted, 
 and the annoyance, though it had been carried on for 20 years 
 prior to 1873, did not become actionable until A built his con- 
 sulting room. B had not acquired an easement to transmit the 
 noise. 1 
 
 § 139. Acts in assertion of such rights are in 
 their inception invasions of the natural rights 
 of property arising out of situation, and are 
 termed nuisances, if they interfere sensibly 
 with the ordinary comfort of human existence. 
 
 Illustration. 
 
 A , engaged in tho sale of laco, settles in the neighbourhood of 
 a brewery which, has been carried on for 10 years. A' s goods 
 
 1 Sturges v. Bridgman (App.), L. It. 11 Ch. D. 8o3 ; 
 
 48 L. J. Rep. Ch. 785.
 
 DIGEST OF THE LAW OF EASEMENTS. 91 
 
 become damaged by the atmosphere of the brewery. A's natural 
 right to purity of air has been invaded. 1 
 
 § 140. To erect or place, 2 or continue 3 any- 
 thing offensive so near the property of another 
 as to render it useless for its purpose and, if a 
 house, unfit for habitation, or in any other 
 way to obstruct the exercise of a natural right 
 arising by situation, is a nuisance and action- 
 able. 4 
 
 § 141. In every instance it is a question of 
 fact whether such a degree of annoyance exists 
 as can be said to interfere sensibly with the 
 ordinary comfort of human existence. 
 
 1 Robins v. A brewer, Viner's Abr. Nusans. (Mc). 
 Elliotson v. Feetham and another, 2 Bing. N. 0. 134. 
 Bliss v. Hall, 4 Bing. N. C. 183 ; 7 L. J. N.s. C. P. 122. 
 
 2 In Jones v. Powel (Hutton, 136), a case is cited of an action 
 brought against a dyer Quia fumos, fceditates, et alia sordida 
 juxta parities querentis posuit, per quod parities putridce devene- 
 runt, et ob metum infectionis per horridum vaporem, &c, ibidem 
 morari non audebal. And see Ballard v. Tomlinson (App.), 54 
 L. J. Ch. 454 ; L. B. 29 Ch. D. 115, where the defendant turned 
 sewage into his well, which by percolation polluted the water 
 in an adjoining well belonging to plaintiff. 
 
 3 Penruddock's Case, 5 Bep. 100 b. 
 Some v. Barwish, Cro. Jac. 231. 
 
 Saxby v. The Manchester, Sheffield, and Lincolnshire Ry. Co., 
 
 L. B. 4C. P. 198; 38 L. J. C. P. 153. 
 
 See especially the judgment of Keating, J. 
 
 * See Wright v. Howard, 1 Sim. & St. 190 ; 1 L. J. Ch. 94 ; and 
 
 Sampson v. Hoddinott, 1 C. B. >\ s. 590 ; 26 L. J. C. P. 148.
 
 92 DIGEST OF THE LAW OF EASEMENTS. 
 
 § 142. No suitability of place can legalise a 
 nuisance.* 1 
 
 § 143. A nuisance is not justified by the 
 existence of other nuisances of a similar 
 character, if it can be shown that the incon- 
 venience is increased by the nuisance for which 
 redress is sought. 2 
 
 § 144. An obstruction or disturbance of an 
 easement is conduct which deprives or tends 
 to deprive the possessor of the right of the 
 lawful enjoyment of it. 
 
 * Note. — In Comyns' Digest, "Action for Nuisance," it is 
 said " an action doth not lie for tho reasonable use of my right, 
 * ' though it be to the annoyance of another ; as if a butcher, 
 " brewer, &c, use his trade in a convenient place, though it be 
 " to the annoyance of his neighbour." 
 
 No authority is cited for this proposition. Vide judgment of 
 Martin, B., in Stockport Waterworks Co. v. Potter, 31 L. J. 
 Exch. 9. In Hole v. Barlow, 4 C. 13. n. s. 334, the questions left 
 to the jury were, was the place where the bricks were burnt a 
 proper and convenient place for the purpose? and if not, was 
 the nuisance such as to make tho enjoyment of life and property 
 uncomfortable ? and tho jury found for the defendant ; in effect 
 finding (as Baron Martin subsequently said) that there had been 
 no nuisance. But tho doctrino of " a proper and convenient 
 place" was overruled in Bam/ordy. Turnley, 31 L. J. Q. B. 
 Exch. Oh. 286. 
 
 Bit v. Hall, 4 Bing. N. C. 183 ; 7 L. J. x. s. C. P. 122. 
 
 EllioUon v. Feetham, 2 Bing. N. C. 134. 
 
 II alter v. Self, 4 Do Gcx & Sm. 315 ; 20 L. J. Ch. 433. 
 
 Soltau v. /'' Held, 2 Simons, n. s. 133. 
 
 Bamford v. TvmUy, 3 B. & S. G6; 31 L. J. Q. B. 28G. 
 - ' 'roeahy v. Lightowler, L. R. 2 Ch. A. 478 ; 30 L. J. Ch. 584.
 
 DIGEST OF THE LAW OF EASEMENTS. 93 
 
 Illustration. 
 
 A has an easement over B's ground of having water carried 
 in pipes to A's adjoining tenement. B builds over the pipes and 
 prevents A having access to them to repair them when out of 
 order. B has disturbed and obstructed A in the enjoyment of 
 his easement. 1 
 
 § 145. An obstruction or disturbance of a 
 right arising by situation or of a right of ease- 
 ment is actionable without its being necessary 
 to show special damage. 
 
 § 146. An obstruction or disturbance includes 
 a continuance of an obstruction or disturb- 
 ance. 
 
 § 147. It is immaterial whether the person 
 whose right, arising by situation, has been dis- 
 turbed has as yet made use of that to which 
 the right so disturbed extends. 
 
 Illustration. 
 
 A, having just occupied land on the bank of a stream, has a 
 natural right to the use of the water of the stream. B higher 
 up has also a natural right to the use of it. B uses it so im- 
 moderately that A is not able to exercise his right to the extent 
 of a reasonable use of it. Here, whether A had or had not to 
 any extent appropriated the water before the disturbance of his 
 right by B, the act of B is an injury to A's right, and is action- 
 able without special damage to A being shown. 3 
 
 i GoodhaH v. Hyett, To Ch. D. 182 ; 53 L. J. Ch. D. 219. 
 2 Sampson v. Hoddinott, 1 C. B. N. s. 590 ; 26 L. J. C. P. 14S.
 
 94 DIGEST OF THE LAW OF EASEMENTS. 
 
 § 148. Disturbances of easements may inju- 
 riously affect 
 
 1. The occupier. 
 
 2. The reversioner. 
 
 It is only in cases in which the estate is pre- 
 judicially affected by the disturbance that the 
 reversioner is regarded as having sustained an 
 actionable injury. 1 
 
 1 Simpson v. Savage, 1 C. B. N. S. 347 ; 26 L. J. C. P. 50. 
 Metropolitan Association v. Petch, 5 C. B. N. S. 504 ; 
 
 27 L. J. C. P. 330. 
 Jesser v. Gifford, 4 Burr. 2141. 
 Kidgill v. Moor, 9 C. B. 364 ; 19 L. J. C. P. 177. 
 Cooper v. Crabtree, L. E. 20 Ch. D. 589 ; 51 L. J. B. Ch. 544 
 (no injury affecting the reversion).
 
 DIGEST OF THE LAW OF EASEMENTS. 95 
 
 OF CAPACITY. 
 
 of the capacity to acquire an easement. 
 
 Express Grants. 
 
 § 149. No person can take a grant without 
 his consent, express or implied. 
 
 Generally speaking a grant is presumed to be 
 for the benefit of the grantee, and therefore, 
 till disagreement is shown, the law presumes 
 that it had the consent of the grantee, even 
 though the grantee be an idiot, lunatic, or in- 
 fant. 1 Coverture is no longer a disability.- 
 
 The grantee may signify his dissent when 
 free from his disability, and provided the grant 
 was disadvantageous to him, may avoid it. 1 
 
 As to a grant to an infant grantee, also, if he 
 die during minority without having agreed to 
 the grant, or die after he is of age without 
 having assented to it, and his heir will not ac- 
 cept it, it is avoided. 
 
 With regard to lunatics a grant to a person 
 apparently of unsound mind will be upheld if 
 
 1 Digby's History of the Law of Real Property, 3rd edit. 361. 
 
 2 45 & 46 Vict. c. 75.
 
 96 DIGEST OF THE LAW OF EASEMENTS. 
 
 fair and bond fide where the transaction is fully 
 completed. 1 
 
 As to idiots, if the grant is perfectly fair and 
 for the benefit of such persons, it will be up- 
 held. 1 
 
 If the grantee on becoming free from his 
 disability signifies his assent or dissent the 
 grant is finally validated or avoided. 2 
 
 Implied Grants. 
 
 § 150. An implied grant always arises as an 
 incident of an express grant, apart from which 
 the question of capacity cannot arise in respect 
 to the implied grant. 
 
 Easements by Prescription. 
 
 § 151. The presumption of a grant having 
 been made and lost may, it seems, be raised in 
 favour of a person who at the time at which the 
 grant is presumed to have been made was under 
 a legal disability, such as idiotcy, lunacy, or 
 
 1 Molton v. Camroux, I Exch. 17; 
 
 18 L. J. Exch. 356, Exch. Ch. 
 1 Bee Smith's Law of Real ami Personal Property, 
 
 p. 1321, § 3294, 6th edition. 
 I igby'e I [istory of the Law of Real Property, 
 
 3rd edition, p. 36 L
 
 DIGEST OF THE LAW OF EASEMENTS. 97 
 
 infancy, because a valid grant might be made 
 in favour of a person so circumstanced. 1 
 
 of the capacity to grant an easement. 
 Expeess Grants. 
 
 § 152. An easement may be granted though 
 the servient owner of the tenement was, at the 
 time of the grant, under the legal disability of 
 infancy, 2 provided that on becoming free from 
 the disability the grantor may avoid the grant 
 if it was to his disadvantage. 
 
 In gavelkind tenure an infant may alien by 
 feoffment at the age of fifteen. 3 
 
 " A deed executed by an infant is voidable 
 "only and not void; and Zouch v. Parsons 
 " (3 Burr. 1794) is sound law. Avoidable deed 
 " is valid until some act is done to avoid it. 4 
 Grants by lunatics or idiots who have not the 
 requisite intelligence are void; 5 but "mental 
 " incapacity will not vacate a contract if the 
 " incapacity be unknown to the other contract- 
 " ing party, and no advantage have been taken 
 " of the incapable person, especially if the 
 
 1 Digby, 3rd edition, 361. 
 
 2 Smith's Law of Real and Personal Property, § 3302. 
 
 3 Co. Litt. 171 b, n. (5). 
 
 i Allen v. Allen (1841), 2 Dru. & W. 307. 
 5 Digby, 3rd edition, 359. 
 I. F
 
 98 DIGEST OF THE LAW OF EASEMENTS. 
 
 " contract has been executed, so that the 
 " parties cannot be restored to their original 
 " position." 1 
 
 A person cannot allege his own insanity to 
 avoid a grant made by him when insane. But 
 after his death his heir or other person interested 
 may take advantage of his incapacity to avoid 
 the grant. 2 
 
 Implied Grants. 
 
 § 153. An implied grant always arises as an 
 incident of an express grant, apart from which 
 the question of capacity cannot arise in respect 
 to the implied grant. 
 
 Easements by Prescription. 
 
 § 154. A presumption of a grant having been 
 made and lost cannot be raised to the prejudice 
 of a servient owner who, at the time at which 
 the grant would be presumed to have been 
 made, was incapable of consenting to it. 
 
 Exception. — This rule does not apply to ease- 
 ments of light acquired under the Prescription 
 Act. 
 
 Molton v. Camrowx (1849) (in error), 4 Exch. 17 ; 
 
 18 L. J. Exch. 35G, Exch. Ch. 
 § 3341, Smith.
 
 DIGEST OF THE LAW OF EASEMENTS. 99 
 
 Illustrations. 
 
 (a.) A has had an imruemorial user of an easement over the 
 tenement of B, and claims to prescribe at common law. 
 
 B is shown to have been incapable of consenting to the making 
 of a grant by reason of lunacy or minority 25 years prior to the 
 suit, and it is not shown when his incapacity commenced. He 
 may, therefore, have been incapable at any part of the period 
 of user. The presumjition of his having made a grant cannot 
 therefore arise. 
 
 (i.) A has had immemorial user of an easement over the tene- 
 ment of B, and claims to prescribe at common law. It is shown 
 that B was, 25 years prior to suit, incapable from lunacy of con- 
 senting to the making of a grant. But it is shown that his 
 incapacity commenced 25 years prior to the suit. 
 
 Immemorial user being shown, a grant may be presumed, as 
 the circumstances warrant the supposition that a grant may 
 have been made by B or by his predecessors at a date prior to 
 the commencement of the incapacity. 
 
 (c.) A has had 20 years' enjoyment as of right of an easement 
 over the tenement of B, and claims to prescribe under the Pre- 
 scription Act. It is shown that at the commencement of the 
 20 years B was an infant. 
 
 This, except in the case of an easement of light, rebuts the 
 presumption of a grant at the commencement of the 20 years, 
 because B was then incapable of consenting to the making of 
 the grant. 
 
 § 155. In the case of an easement of light, 
 the period of 20 years' actual enjoyment, with- 
 out interruption, is sufficient by prescription 
 under the Act to enable the dominant owner to 
 acquire the easement, irrespective of the capacity 
 of the servient owner. 
 
 § 156. If, at the point of time at which it is 
 presumed that the grant was made, the servient 
 owner, or those through whom his right is 
 
 f2
 
 100 DIGEST OF THE LAW OF EASEMENTS. 
 
 derived, were capable of making a grant, no^ 
 subsequent incapacity of such persons can rebut 
 the presumption of a grant; though inter- 
 mediate incapacity renders the claim subject to 
 deduction from the period of enjoyment. See 
 § 38, ante. 
 
 Illustrations. 
 
 (a.) A has had several years' enjoyment of an easement as of 
 right over the tenement of B, and claims a right to the ease- 
 ment under the Prescription Act. 
 
 It is shown that for the period of 10 years, commencing 5 years 
 after the commencement of the period of enjoyment, and ending 
 15 years hefore its termination, B was insane. As, however, at 
 the commencement of the period of enjoyment, being the point at 
 which the grant is presumed to have been made, B was capable 
 of consenting to the making of a grant, the presumption of a 
 grant is not rebutted by B's subsequent incapacity; but the 
 period of 10 years is excluded from the computation. 
 
 (I ).) B's father, C, whose heir B is, and B, after C's death, have 
 .suffered an enjoyment by A of an easement over their tenement 
 for over 20 years in the whole. C, at the commencement of the 
 poriod was capable of consenting to the making of a grant. B 
 wis an infant at C's death, which took place 2 years after the 
 commencement of the period. 
 
 The subsequent incapacity on the part of the servient owner 
 does not affect the presumption of C having made a grant in 
 favour <>f A at the commencement of the period of over 20 years; 
 but the period of the infancy of B is excluded from the compu- 
 tation. 
 
 §157. A grant cannot be presumed if the 
 circumstances arc such that the servient owner, 
 though capable of making a grant of the right 
 
 of easement, has been incapable of resisting the
 
 DIGEST OF THE LAW OF EASEMENTS. 101 
 
 user, unless there are other circumstances show- 
 ing that he afterwards consented to the user. 
 
 Exception. — This does not apply to an ease- 
 ment of light acquired under the Prescription 
 Act. 
 
 Illustrations. 
 
 («.) B, a servient owner, leases his tenement to C. A, the 
 ■owner of a neighbouring tenement, exercises a right of ease- 
 ment over B's tenement after it is leased to C. 
 
 The tenement being leased to C, B has no means of obstructing 
 A's user of the easement. 
 
 A grant by B to A cannot be presumed. 
 
 (6.) In the same circumstances, after the expiry of the lease, 
 B, having notice of the user by A, renews the lease to C without 
 "taking any steps, or requiring C to take any steps, to resist the 
 user by A. 
 
 Here, as B had the opportunity to resist the exercise of the 
 user by A and did not do so, he may be presumed to have con- 
 sented to it, and the period of user during the first and renewed 
 tenancies may be reckoned towards the period of enjoyment 
 required to raise the presumption of a grant. 
 
 § 158. A grant cannot be presumed of a right 
 of easement which has been enjoyed without 
 the knowledge of the servient owner. 
 
 Exception. — This does not apply to the case 
 of light so enjoyed, if the easement is claimed 
 under the Prescription Act. 
 
 Illustration. 
 
 A has for 20 years enjoyed an easement of light passing to 
 his tenement from that of B. 
 
 B has been unaware of the enjoyment. His ignorance of the 
 enjoyment of the easement by A does not prevent the acquisition 
 •of the right of easement from B.
 
 1 O'J DIGEST OF THE LAW OF EASEMENTS. 
 
 OF LICENSES. 
 
 § 159. A license is a privilege which any 
 person, quite independently of any tenement 
 of which he is owner or of which he is pos- 
 sessed, obtains from the owner of a tenement 
 in respect of the use of that tenement, either 
 occasionally or for a definite temporary pur- 
 pose. 
 
 A license as to personal things is a grant or 
 a loan. 
 
 Illustrations. 
 
 A grants to B a license to hunt in A's ground and to carry 
 away deer. Hero the permission to hunt on the ground is a 
 license. The permission to carry away deer is a grant of the 
 deer. 1 
 
 A permits 1> to take a wheel-barrow so many days a week 
 iiom A's ground. This is a loan. 
 
 § 160. A license may he granted by parol. 
 
 § 161. A license by parol is void where its 
 effect, if valid, would be to convey an ease- 
 
 1 Thomas v. Sorrell, Vaughan, 351. 
 See Wood v. Leadbitter, 13 M. & W. 838; 
 
 & 14 L. J. Exch. 161.
 
 DIGEST OF THE LAW OF BASEMENTS*. 103 
 
 merit. 1 Such a license, to be valid, must be by 
 grant express or implied. 2 
 
 § 162. A parol license, though executed, is 
 countermandable. 
 
 Exception 1. — A parol license if executed can- 
 not be countermanded in cases where the effect 
 of it is not indeed to convey an easement but 
 to authorize the grantee, by doing something 
 on his own land, to abridge or extinguish an 
 easement hitherto possessed by the grantor over 
 the land of the grantee. 
 
 Exception 2. — A parol license is not counter- 
 mandable if it is coupled with a grant of an 
 interest. It is then to be regarded as putting 
 the grantee in possession of the interest so 
 granted for the term of the license or for a 
 reasonable term, but not for longer than the 
 right to possession of the place in or upon 
 which the interest is granted remains in the 
 grantor. 
 
 Illustrations to Exception 1. 
 
 (a.) A, by license of B, erects in A.'s premises a weir in a 
 stream at a point above B's mill, to wbicb tbe water bad been 
 accustomed to flow, and tbus diminisbes tbe advantage wbicb B 
 
 1 Hewlins v. Shippam, 5 B. & C. 221 ; & 4 L. J. K. B. 241. 
 Cocker v. Cowper, 1 C. M. & B. 418 ; 5 Tyrr. 103. 
 Fentiman v. Smith, 4 East, 107. 
 
 2 Wood v. Leadbitter, supra.
 
 104 DIGEST OF THE LAW OF EASEMENTS. 
 
 had of right and by way of easement enjoyed in the use of the 
 water of the stream. The license is irrevocable. 1 
 
 A, by license of B, by a permanent structure encloses on A's 
 own ground, with B's consent, an area through which B has a 
 right to receive, and has been accustomed to receive, light and 
 air. In consequence of the enclosure B receives no light or air 
 by the area. The license is irrevocable. 2 
 
 Illustrations to Exception 2. 
 
 (b.) A gives permission to B to stack hay on A's land and 
 carry it away. 
 
 This license is not revocable till B has had a reasonable time 
 to stack and carry away the hay. 3 
 
 In the same circumstances A, after giving the permission, 
 sells the land to C. A's rights to possession of the land on 
 which he had given B permission to stack the hay having ceased 
 the license ceases. 4 
 
 (c.) A's hay was seized by his landlord as a distress for rent 
 and sold, the conditions of sale being that the purchaser, B, 
 might come on A's ground from time to time to remove the hay. 
 A assented to this. B removed some of the hay and then A 
 locked the gate. B broke open the gate. The license given by 
 A being irrevocable, A cannot recover damages from B. 5 
 
 (d.) A authorizes B to dig for tin in A's property and to dis- 
 pose of the tin on certain terms for 21 years. 
 
 A has granted an irrevocable license during 21 years to take 
 the ore which shall be found. 6 
 
 (' .) A grants B a license to hunt on his land and take away 
 game. This is a grant of the game with a license to come and 
 carry it away. The license is not revocable until it has been 
 executed for a reasonable period. 
 
 The words " coupled with a grant of an 
 
 1 Liggina v. Inge, 7 Bing. G82 ; 9 L. J. C. P. 202. 
 - Winter v. Brochwell, 8 East, 309. 
 
 Well v. Paternoster, 2 Roll. Rep. 143, 152. 
 ; I'linniiK r x. Webb, Koy's Rep. 98. 
 ■ lie-,/ v. ManUy, 1 1 Ad. A: I':. :i(); 9 L. J. n.s. Q. B. 27. 
 • Doer. Wood, 2 B. &Ald. 738.
 
 DIGEST OF THE LAW OF EASEMENTS. 105 
 
 interest" in Exception 2, mean coupled with 
 such a valid grant of an interest as may bo 
 made by parol, as an interest in stacking hay, 
 removing hay, digging for ore, and taking 
 game ; but do not include an interest which 
 may only be granted by deed. 
 
 Illustrations. 
 
 («.) A, without deed, permits B to come on his land and 
 make a water-course to flow on B's land. There being here no 
 valid grant of the water-course, which can only be granted by 
 •deed, the permission, though coupled with an interest, is a mere 
 license, and as such revocable. Case put in Wood v. Leadbitter, 
 14 L. J. Exch. 165. 
 
 (&.) A grants B permission to hunt or shoot on his land, but 
 does not grant him permission to carry away game ; as the parol 
 grant to use the land for hunting or shooting does not convey 
 any valid interest in the land, the permission is a mere license 
 and revocable. Case put in Wood v. Leadbitter, 14 L. J. Exch. 
 165. 
 
 § 163. A parol license, though executed, and 
 even though valuable consideration may have 
 been given for it, is countermandable in other 
 cases. 
 
 Illustration. 
 A issues tickets, at one guinea each, permitting the holders to 
 come on his enclosure to witness some races. B becomes the 
 holder of one of these tickets, for which he has paid one guinea. 
 A may at any time revoke the permission to enter and be on the 
 •enclosure, and may turn B out of it. ' 
 
 1 Wood v. Leadbitter, and the cases cited in it, 13 M. & W. 838 ; 
 
 14 L. J. Exch. 161. 
 Viz., Webb v. Paternoster. 
 
 Wood v. Lake. 
 
 Wood v. Mauley, and Taylor v. Waters, which it overruled. 
 
 F 5
 
 106 DIGEST OF THE LAW OF EASEMENTS. 
 
 § 164. And even when anything of a per- 
 manent character is erected under a license on 
 the land of the licensor the license is counter- 
 mandable. 
 
 Ilhistmtioii. 
 
 A, under the license of B, built a cottage on the waste ground 
 of B and lived in it for a year and a half. Held, that the 
 license was revocable. To have held otherwise would have been, 
 in effect, to recognize a valid grant in the land ; which must be 
 by deed and not by parol. 1 
 
 The King v. The Inhabitants of JIorndon-on-the-HiU , 
 
 4 M. & S. 562.
 
 INDEX. 
 
 — ♦ — 
 
 PAGE 
 
 Abandonment, 
 
 Extinguishment of easement by . . . . 85 89 
 
 Acquisition, 
 
 Modes of .23 
 
 Where there can be no . 9, 18, 19, 21, 23, 25, 38, 73" 90 
 
 Act, 
 
 of the dominant owner, Extinguishment of easements 
 by necessary consequence of S5 
 
 Action, 
 
 necessary to acquisition of easement under Prescrip- 
 tion Act .23 
 
 for damages for injury in respect of public right of 
 
 , w . a >: 79 
 
 tor injury in respect of private right . . . .71) 
 
 Actual 
 
 enjoyment, Meaning of 30, note, 32, 33, 40 
 
 Air, 
 
 uninterrupted flow of, from adjoining tenement, No 
 
 natural right to 5y 
 
 Eight to receive, vertically .' 58 
 
 Eight to enjoy freely what comes laterally or vertically 58 
 pollution of, Eight to freedom from .... 58 
 
 unpolluted, Definition of 58 
 
 Qualifications of rights in 58 59 
 
 Eights of easements in 59' 60 
 
 Alteration 
 
 of mode of enjoyment, Extinguishment of easement 
 h 7 S3, 84, 85 
 
 Annoyances or Nuisances 90 91 92
 
 108 INDEX. 
 
 PAGE 
 
 Artificial Stream, 
 
 Rights of a person in possession of an . . .44 
 
 Natural right in _ . • 44, 45 
 
 Some rules as to natural streams not applicable to . 44 
 In what case a right to an easement of uninterrupted 
 
 flow may be acquired in an . . .48 
 
 if permanent 48 
 
 if temporary . . • • 48 
 
 Against whom it may be acquired when the stream is 
 
 permanent ....... 48 
 
 when temporary ...... 48, 49 
 
 Easements of damming up and diverting ... 49 
 Easements of polluting ...... 50 
 
 " As of Eight and without Interruption," 
 
 In what cases enjoyment must be shown to have been 25 
 
 Ascertained, 
 
 "Way of necessity cannot be altered when once . . 57 
 
 Assent 
 
 or dissent to grant by grantee when free from dis- 
 ability, Effect of 95 
 
 Buildings, 
 
 support of, by soil, No right to, except as an easement 61 
 support of, by buildings, Eight to, may arise on 
 
 severance of tenements ...... 63 
 
 Support of ancient, by one built contiguously and 
 
 simultaneously, but by different owners ... 64 
 Though no right of support exists, care in removal 
 
 required ......... 64 
 
 Capacity 
 
 to acquire an easement 95, 96 
 
 Question of, in respect to implied grants 
 
 In the case of prescription . 
 
 to grant an easement .... 
 
 by express grant .... 
 
 by implied grant 
 
 96 
 96 
 97 
 
 97,98 
 
 , 98 
 
 Acquisition of easement of light, independent of 99, 101 
 
 Care, 
 
 Duty of, in removing a contiguous building . . 64 
 
 Cessation 
 
 of necessity, Extinguishment of easements by . .83
 
 INDEX. 109 
 
 ,n> PAGE 
 
 Claim 
 
 under the Prescription Act not sustainable on an en- 
 joyment short of twenty years . . . 25, 3 5 
 
 Common Law, 
 
 Prescription at, what it is 17 
 
 Computation 
 
 of time, exclusion of periods of disability . . 35—38 
 
 Consent, 
 
 express or implied, necessary to validity of acquisition 
 of grant 95 
 
 Construction 
 
 of grant to determine whether easement of way limited 52 
 
 Contiguous 
 
 building, Obligation of care in removal of . . .64 
 
 Continuance 
 
 of obstruction to a natural right by a person who did 
 not commence it, his liability 91 
 
 Contribution 
 
 by owner to subsidence of buildings, how it affects 
 right to support 64 
 
 Conveniences 
 
 used and enjoyed before severance between the two 
 portions of a severed tenement — when they pass as 
 appurtenant to the tenement sold . . 11, 17, 53, 54 
 
 Corporation, A, 
 
 is a person ......... 6 
 
 " Coupled with the Grant of an Interest," 
 
 Meaning of 104 
 
 Damage, Special, 
 
 unnecessary to be shown to sustain an action for ob- 
 struction or disturbance of natural right or ease- 
 ment 93 
 
 Damming 
 
 up a stream by an upper riparian proprietor, or by a 
 lower riparian proprietor, a violation of what right . 44
 
 110 INDEX. 
 
 TAGE 
 
 Defeated, 
 
 How the right to an easement under the Prescription 
 Act through, enjoyment of twenty years may be, and 
 how it cannot be . . . _. . .31,32,40 
 
 How claims, except those to light, liable to be, not- 
 withstanding actual enjoyment for period required . 40 
 
 Defence, 
 
 Pollution by others not a good, in an action for 
 damages for pollution of atmosphere ... 92 
 
 Defined Stream, 
 
 Riparian owner's right limited to the . . . .43 
 may be above ground or under ground . . .45 
 
 Definition 
 
 of servitudes 1 
 
 of unpolluted air ....... 58 
 
 of excessive exercise of enjoyment .... 75 
 
 of a license 102 
 
 Deviation 
 
 from way in exercise of a private right of way, when 
 authorized 57 
 
 Different 
 
 route, when may be taken in exercise of a private 
 right of way ........ 57 
 
 Disability, 
 
 Exclusion of periods of 35 — 38 
 
 Grantee, when free from, may signify dissent to grant 
 
 made 9G 
 
 Servient owner under a, at time of grant, may on 
 
 becoming free from disability avoid grant . . 97 
 
 Disturbance 
 
 of natural rights and of casements .... 89 
 
 Diversion of Water, 
 
 when not an injury to lower riparian proprietor . . 43 
 
 Divert Water, 
 
 Easement of right to, how may be acquired . . 49 
 
 Duty of Care 
 
 in removal of a contiguous building .... 04 
 in getting rid of collections of water .... 40
 
 INDEX. HI 
 
 Easements, 
 
 What servitudes are so called 12 
 
 In what respects permanency required . . . ' 2 
 
 Origin of 2 
 
 classification of .34 
 
 certain conditions of '5 
 
 Quantum of interest required in the person acquiring 
 
 by grant or by prescription <; 
 
 Tenant cannot acquire, against landlord . . ! 6 
 
 Who may acquire 6 7 S 
 
 by express grant ' g 
 
 by implied grant, how they arise ..*!." 9 
 cannot exist during unity of possession . . . 9, 10 
 may arise On severance of tenements out of depend- 
 ence of parts 10 17 
 
 Illustrations of ..... 13' 1G 
 
 by prescription 17' 30 
 
 of water, what kind of streams they may be acquired 
 
 in 47 
 
 of uninterrupted flow in a permanent artificial stream 48 
 Against whom they may be acquired .... 49 
 
 to obstruct or divert water ! 49 
 
 to pollute water 50 
 
 of way, how may be acquired .... 51 58 
 
 in air ^g 
 
 of support , ". ! ! 62—65 
 
 of light by implied grant, when they arise . . 66—69 
 of light can only be claimed as appurtenant to build- 
 ings 21 
 
 which can be acquired under the Prescription Act .' 23 
 
 when cannot be acquired 38 73 
 
 Extinguishment of, 
 ■ 1, by express relief, how effected .... SO 
 2, by merger by union of two or more tenements in 
 one owner ....... SO 
 
 Exception S2 
 
 do not become dormant or latent by union, but are 
 
 extinguished SO SI 
 
 are not revived by subsequent severance, but arise 
 
 . n . ewl ? • • ■ • • • • . 80, 81 
 
 extinguished by cessation of purpose ... 82 
 
 of necessity . . .S3 
 
 Extinguishment of, by alteration of mode of enjoy- 
 
 ment 
 
 83 
 
 Extinction of, by necessary consequence of act of the 
 
 dominant owner ..... S-3 
 
 Extinguishment of, by abandonment . . . ! 85 
 of light, Abandonment of, what circumstances afford 
 evidence of abandonment SO
 
 112 INDEX. 
 
 PAGE 
 
 Easements — c <mt in tied. 
 
 Estoppel of dominant owner from denying . . . 87 
 
 Disturbance of 89 
 
 Nuisances, the right to commit which is in each case 
 
 an .... 89 
 
 Capacity to accept or to grant an 95 — 97 
 
 Effect 
 
 of acquisition of public right of way over road privately 
 enjoyed by way of easement 57 
 
 of showing that right claimed under the Prescription 
 Act was first enjoyed at a date prior to the period 
 of twenty years, but within the period of legal 
 memory 31 
 
 Enhancement 
 
 of obligation of support does not arise in favour of 
 one who has contributed to the subsidence of his 
 buildings 64 
 
 Enjoyment 
 
 of air received, Eight to 58 
 
 of twenty years, What may be presumed after . . 18 
 
 to qualify for acquisition of prescriptive right at com- 
 mon law, Character of 22 
 
 for twenty years necessary to sustain a claim under 
 the Prescription Act . 25 
 
 In what cases, must have been as of right and with- 
 out interruption ....... 25 
 
 of light without interruption for twenty years confers 
 absolute right to easement under the Prescription 
 Act • 33 
 
 Eight of dominant owner to do all that is necessary for 
 full and free exercise of .77 
 
 Extinguishment of easements by alteration of mode of 83 
 
 Entry 
 
 to private easement of way, At what point, may be 
 made 52 
 
 Erections, 
 
 offensive, Obligation as to 91 
 
 Estoppel 
 
 of dominant owner from denying abandonment . . 87 
 
 Excessive 
 
 exercise of enjoyment, When servient owner has a 
 
 right to obstruct 74 
 
 Extent to which ho may obstruct ... 75, 70 
 exercise of enjoyment, Meaning of . . . .75
 
 INDEX. 113 
 
 PAGE 
 
 Exclusion 
 
 of. periods o£ disability and iife interests and terms of 
 years ........ 35 — 38 
 
 Express Grant, 
 
 Easements by 2, 3, 9 
 
 Easements of water may be acquired by, over streams 
 
 or collections of water of all kinds .... 47 
 Acquisition of right of way by, bow made ... 53 
 
 Express Eelease, 
 
 Extinguishment of easements by . . .80 
 
 Extent of Eight, 
 
 how determined in case of grant by deed ... 70 
 
 if granted for general purposes cannot be restricted to 
 particular purposes, except in certain cases . . 70 
 
 when a grant is at variance wholly or partially with 
 an Act of Parliament G9 
 
 on severance of tenements by dominant owner among 
 several vendees with reservation of a portion to 
 himself, what the criterion of distribution of the 
 easement. ....... 70,71 
 
 Obligation of servient owner in respect of a right of 
 way ......... 72 
 
 Extent of User, 
 
 Obligation of dominant owner 72 
 
 "When easement acquired by prescription, accustomed 
 
 user must determine 72 
 
 Accustomed user, how limited . . . . .72 
 to pollute a stream existing at the commencement of 
 
 the period, is the measure of degree of pollution 
 
 permissible ........ 73 
 
 Effect when original, cannot be measured ... 73 
 in the case of light. Effect of alteration in modes of 
 
 receiving the light ....... 74 
 
 Where it is in excess, servient owner has a right to 
 
 obstruct, on his own grounds .... 74, 75 
 
 Extinguishment of Easements 77 
 
 by express release, how effected .... 77, 80 
 by merger by union of two or more tenements in one 
 
 owner 80 
 
 Exception . 82 
 
 by cessation of purpose ...... 82 
 
 by cessation of necessity 83 
 
 by alteration of mode of enjoyment .... 83 
 
 by necessary consequence of act of the dominant owner 85 
 
 by abandonment ....... 85 
 
 by license 89
 
 114 INDEX. 
 
 PAGE 
 
 Flood "Water, 
 
 how may be disposed of 46 
 
 Forty 
 
 years' enjoyment, Effect of 33 
 
 98 
 
 . 99 
 
 2, 3, 9, 47, 53 
 
 ♦ 95 
 
 9 
 
 9 
 
 <xRANT, 
 
 Presumption of, cannot be raised to prejudice of ser- 
 vient owner wbo was under a disability at pre- 
 sumable date of it . 
 Exception in case of light . 
 express, Easements by 
 
 pre -requisite to validity of 
 implied, Easements by 
 how they arise 
 Question of capacity to take a . _ . . _ . 95 
 Presumption of, in favour of person claiming as domi- 
 nant owner who was under a disability at presum- 
 able date of it 96 
 
 GRANTEE, 
 
 when free from disability, may signify his assent or 
 dissent • . . 96 
 
 Assent or dissent so signified, finally validates or voids 
 the grant ........ 96 
 
 Holders of Leaseholds, 
 
 their capacity to acquire easements of light . . 8 
 Extent of their right 8 
 
 Ignorance 
 
 of servient owner as to user, Effect of . 31, 33, 98, 99, 101 
 Exception as to light 31, 33, 98, 101 
 
 Immemorial Usage, 
 
 What is sufficient evidence of 18 
 
 Implied Grant, 
 
 Easements by, how they arise 9 
 
 Easements of support by . . . . .63 
 
 Easements of light, in what circumstances arising by 66 
 Question of capacity in respect of '. . .96 
 
 Incapacity 
 
 to resist user, Effect of 100
 
 INDEX. 115 
 
 PAGE 
 
 Incidents of Easements, 
 
 obligation to repair ....... 76 
 
 (1) If damage arise to the servient owner by rea- 
 
 son of non-repair of artificial works through 
 which enjoyment is had, liability of servient 
 owner 77 
 
 (2) If damage arises from natural causes only . 77 
 
 Inhabitants 
 
 of a village, not a person 6 
 
 Intention 
 
 of vendor on severance when expressed by an act, but 
 not in writing, how it may affect acquisition of 
 easement 13 
 
 Interest, 
 
 Grant of an 103 
 
 coupled with grant of an, Meaning of 104 
 
 Interruption, 
 
 Without, meaning of 24, 30 
 
 under the Act, What is not an . . . 30 
 
 What term of, required to constitute interruption 
 
 under the Act 30 
 
 must be submitted to or acquiesced in during that 
 
 term 30 
 
 How submission to, may be negatived ... 30 
 
 Knowledge 
 
 of enjoyment by servient owner not necessary to the 
 acquisition by dominant owner of an easement of 
 Hght by prescription ..... 33, 68 
 
 Laterally, 
 
 Eight to receive light, not a natural right . . 65 
 
 Leaseholds, 
 
 Holders of, their capacity to acquire easements of light 8 
 extent of their right ...... 8 
 
 License, 
 
 Extinguishment of an easement by . 
 
 Definition of a . 
 
 as to personal things, what it amounts to 
 
 How, may be granted 
 
 Parol, when void .... 
 
 When not countermandable 
 
 . 89 
 . 102 
 . 102 
 . 102 
 102, 103 
 103, 104, 103
 
 116 INDEX. 
 
 PAGE 
 
 Life Interests, 
 
 Exclusion of .35 
 
 Ligiit, 
 
 Easements of, rights of holders of leaseholds in re- 
 spect of ......... 8 
 
 Eight to receive vertically, a natural right . . 65 
 
 Eight to receive light laterally, not a natural right . 65 
 What the easement of light consists in ... 65 
 Easements of, by implied grant, how they arise . 66 
 
 Term of enjoyment necessary to confer a prescriptive 
 right to an easement of . . . . . .34 
 
 Easement of, can only be claimed as appurtenant to 
 buildings . . . . . . . .21 
 
 Eight to, under the Erescription Act, absolute after 
 
 twenty years' uninterrupted enjoyment ... 33 
 What circumstances afford evidence of abandonment 
 of easement of 85, 86, 87 
 
 Limit 
 
 of natural right to support of soil . . . .61 
 
 Meaning 
 
 of " actual enjoyment" 25,30,40 
 
 " excessive exercise of enjoyment" ... 74 
 " coupled with grant of an interest " . . . 104 
 
 Merger, 
 
 Extinguishment of easements by .... 80 
 
 Mode 
 
 of user is to determine whether prescriptive easement 
 of way be limited 52 
 
 Name, 
 
 Claim to an easement under the Erescription Act may 
 be made, in whose 25 
 
 Naturae Eight 
 
 to receive light vertically Go 
 
 Naturae Eights 
 
 are never extinguished: may bo suspended and re- 
 vived 81 
 
 Disturbance of 89 
 
 Natural Stream, 
 
 Extent of property of riparian proprietor in water of a 42
 
 INDEX. 117 
 
 PAGE 
 
 Natural Streams, 
 
 Purity of . . . 45 
 
 Necessity, 
 
 Easements of, illustrations 11, 12, 14 
 
 Way of, when impliedly granted ... 55, 5G 
 
 "Way of, will not be implied through tenement of a 
 
 stranger . . . . . . . . .56. • 
 
 Way of, one who has acquired, may take the most 
 convenient way ....... 56. 
 
 Way of, once ascertained cannot be altered . . 57 
 Exception ....... 57 
 
 cessation of, Extinguishment of easements by . 83 
 
 Nuisance, 
 
 To what the term is applied . . . . 90,91 
 
 Suitability of place cannot legalize a . . . .92 
 
 Nuisances, 
 
 The right to commit which is in each case an easement S9' 
 
 Obligation 
 
 of support, what it consists in GO 
 
 of care in removal of contiguous buildings . . . (>4 
 as to offensive erections . . . . . .91 
 
 to repair that on which the enjoyment depends . 76, 77 
 
 Obstruct Easement, 
 
 When servient owner's right to, arises ... 74 
 Extent to which he may 75 
 
 Obstruct Water, 
 
 How easement of right to, may be acquired . . 49 
 
 Obstruction 
 
 of excessive enjoyment of easement, where may be 
 effected 76 
 
 of easements, what amounts to 92 
 
 to a natural right includes a continuance of the ob- 
 struction 93 
 
 of natural right or easement, actionable without 
 special damage ....... 93 
 
 Offensive Erections, 
 
 Obligation as to 91 
 
 Owner, Eiparian, 
 
 his rights in water 42, 44
 
 118 INDEX. 
 
 PAOE 
 
 Parol License, 
 
 when void ......... 102 
 
 when not counterniandable .... 103, 105 
 
 Person, 
 
 An easement can only be acquired by a . . G 
 
 Who is a, for the purpose of acquiring an easement . 
 
 Place, 
 
 Suitability of, cannot legalize a nuisance ... 92 
 
 Placing 
 
 anything offensive near the property of another, how 
 
 regarded 91 
 
 Pollute Water, 
 
 Easement of right to, how may be acquired . 50 
 
 When the time begins to run towards the acquisition 
 of the right to -50 
 
 Pollution of Air, 
 
 Eight to freedom from .*.... 58 
 
 Pre-requisites to the acquisition of easement under the 
 Prescription Act : 
 
 the bringing an action 23, 24 
 
 the possibility of interruption ..... 38 
 the capacity of servient owner at the commencement 
 
 of the period of twenty years ..... 39 
 the possibility of measuring definitely the extent at 
 the period of commencement of an user which has 
 since gradually increased ..... 73 
 to tho acquisition of an easement under section 2 : 
 actual enjoyment by some person claiming right 
 thereto 40 
 
 l'i:;:s< kiftion, 
 
 Easements of water may bo acquired by, over defined 
 
 streams only, and permanent collections of water 21, 47 
 Easements by ........ 17 
 
 ;ii common law, what is ...... IT 
 
 Phescmption Act, 
 
 Pre-requisite to acquisition of easement under . 23,24 
 Ease] Hints which can be acquired under . . . 23 
 I hum to an easement under, may be made in whoso 
 
 name ......... 25 
 
 Basement acquired under, is acquired for benefit of 
 
 tli" dominant tenement ...... 25 
 
 Effeci of showing that right claimed under, was first 
 
 enjoyed at date prior to tho period of twenty years, 
 
 but within the period of legal memory ... 31
 
 INDEX. 110 
 
 TAGE 
 
 Prescriptive Eight, 
 
 to an easement of light, Term of enjoyment neces- 
 sary to confer ,'.....* v 33 
 
 at common law, Cases in which, cannot be acquired . 1& 
 Character of enjoyment to qualify for acquisition of . 21 
 
 Presumption 
 
 of enjoyment for twenty years or for forty years may 
 
 not be raised from enjoyment for any less period . 35 
 of lost grant cannot be raised to prejudice of servient 
 owner who was under a disability at presumable 
 date of it. ........ 98 
 
 Exception in case of light 9S 
 
 of grant, No rebuttal of, by reason of incapacity aris- 
 ing subsequent to presumable date of grant . . 99 
 
 Private Kigiits of Way, 
 
 to whom they appertain . . . . . .51 
 
 for what purposes . . . . . . . <5 1 
 
 existing irrespective of a tenement are not easements . 5 I 
 may be usable generally for all purposes connected 
 
 with passing to or from the tenement . . .51 
 may be limited to a particular mode of user . . 52 
 may be limited as to occasions of user . . 52 
 
 whether limited or not to be determined by construc- 
 tion of grant, if acquired by grant ; or by mode of 
 user if required by prescription . . . 52 
 
 Private Way, 
 
 Owner of easement of, where may enter upon . . 52 
 How easement of, may be acquired .... 53 
 Use of a, to reach a highway . .... 53 
 how affected by acquisition of public right of way 
 over the same ground . . . . . .79 
 
 Procedure 
 
 available when right to support is being imperilled . (J 1 
 
 Profits a prendre, 
 
 What servitudes are so called 1 
 
 Prospect, 
 
 Eight of, cannot be acquired as an easement . . 7 
 
 Public 
 
 rights of way, why not easements . . . .51 
 right of way, Acquisition of, how it affects private 
 right of way over the same ground . . . 57, 5S
 
 120 INDEX. 
 
 PAGE. 
 
 Purity 
 
 of natural stream .45 
 
 of artificial stream : tho person in possession of an 
 artificial stream has a right to possess it in un- 
 diminished purity 45 
 
 Seasonable Use of Water, _ 
 
 Eiparian owner's right limited to a . . .42 
 
 The question of what is a, not a question of law . 42 
 
 Eelease, Express, 
 
 Extinguishments easements by .... SO 
 
 Eemedy 
 
 for injury to public right of way by indictment . . 79 
 
 by action . . 79 
 
 Pre-requisite of right of action in such cases . . 79 
 
 for injury to private right of way, by action . . 79 
 
 Eesistance, 
 
 to user, effect of incapacity to make . . .99, 100 
 
 Exception as to light 100 
 
 Eeversioner, 
 
 In what case right of action arises to . . . .94 
 
 Eiparian Owner, his rights 
 
 in water 42 
 
 as to reasonable use of water 42 
 
 in natural defined streams 42 
 
 diminution of water ...... 42 
 
 diversion of water ...... 43 
 
 damming of water ...... 43 
 
 his right does not extend to water not running in a 
 
 defined stream .43 
 
 can only grant user of water to another as against 
 
 himself 46. 
 
 Servitude, 
 
 defined 1 
 
 Severance of a Tenement, 
 
 What will be implied on 11 
 
 When intention of vendor is expressed _ by an act 
 inconsistent with the grant of a convenience there- 
 tofore used ......•• 13 
 
 On, express words not necessary to pass easements of 
 necessity or continuous and apparent easements 11 — 13
 
 INDEX. 121 
 
 PAGE 
 
 Severance of a Tenement — continued. 
 
 or other conveniences since the Conveyancing Act of 
 
 1881 16 
 
 On, an existing right of way becomes appurtenant to 
 each of the severed portions ..... -j4 
 
 Stranger, 
 
 Eight of way will not be implied through tenement 
 of a 50 
 
 Streams, 
 
 Purity of natural . . . . . . 4.3 
 
 artificial . . . . . . . .4-3 
 
 Kinds of, in which easements may be acquired . . 47 
 
 Subsidence of Buildings, 
 
 Contribution to, by owner, how it affects right to 
 support . . . . . • • • .64 
 
 Suitability 
 
 of place cannot legalize nuisance 9- 
 
 Supf-ORT 
 
 of buildings by soil, no right to, except as an ease- 
 ment .......... 63 
 
 Bight to, may arise on severance of tenements — 
 
 (a) By original disposition of tenements by a 
 
 single owner . . . . . . 63, 64 
 
 (b) By acquisition of the right, by lapse of time, 
 
 in the case of two tenements built contigu- 
 ously by separate owners . . . .64 
 
 Support of Soil, 
 
 Conditions of right to . . . . . .60 
 
 Limit of right to . . . . . . .61 
 
 Obligation of 61 
 
 Bight to, how affected by erection of buildings . 61, 62 
 
 Surface Water 
 
 How may be disposed of . . . . .46 
 
 Tenant 
 
 cannot acquire easement against his landlord . . 5 
 
 can acquire easement of light against other tenants . 7 
 
 His liability for obstructing light . . . . 6'J 
 
 Term 
 
 of enjoyment necessary to confer a prescriptive right 
 to an easement of light 33 
 
 Twenty 
 
 years' uninterrupted enjoyment may raise presump- 
 tion of a grant having been made and lost . . 18 
 years' enjoyment necessary to sustain a claim under 
 
 the Prescription Act -6 
 
 I. G
 
 122 INDEX. 
 
 PAGE 
 UNINTERRUPTED FLOW, 
 
 Easement of, in artificial streams .... 48 
 
 Usage, 
 
 What is sufficient evidence of immemorial . . 17, 18 
 
 Use 
 
 of an easement of way must involve the purpose of 
 
 passing and repassing to and from a tenement . 52 
 
 of an easement of way to reach a highway ... 53 
 
 User, Mode of, 
 
 is to determine whether easement of way limited, if 
 
 acquired by prescription .52 
 
 Effect of ignorance of servient owner as to . . . 101 
 Exception as to light 101 
 
 Vertically 
 
 Eight to receive air, a natural right .... 58 
 Eight to receive light, a natural right ... 65 
 
 Village, 
 
 Inhabitants of a, not a person . .... 6 
 
 Water, 
 
 Natural rights in ....... 42 
 
 In what kind of streams easement of, may be acquired 47 
 Surface, how may be disposed of . . . .46 
 
 Way, 
 
 What are public rights of 51 
 
 Why public rights of, are not easements . . .51 
 Eight of, on severance of tenements . . 53, 54 
 
 Obligation of servient owner in respect of a right of . 72 
 
 Private rights of, what they are 51 
 
 of necessity once ascertained cannot be altered . . 57 
 Private right of, how affected by acquisition of pubbc 
 right over the same ground . . . . .79 
 
 Remedies for injury in respect of right of, 
 
 where public right ...... 79 
 
 where private right ...... 79 
 
 Ways, 
 
 Eights of easement in 51 — 58 
 
 THE END. 
 
 l'iil.NTJO) BY C. F. KUWOKT1I, OKEAT NEW BTKKKX, KKXTJBB LAN*., E.C.
 
 May, 1894 
 
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 County Courts, including that in Admiralty and Bankruptcy. 
 Fourth Edition. With Supplementary Volume containing the New 
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 of Poole. 3 vols. DemySvo. 1890-91. 21. 10s. 
 
 *** The Supplement sold separately. 7s. 6d. 
 
 Pitt-Lewis' County Courts Act, 1888.— With Introduction, Tabular 
 Indices to consolidated Legislation, Notes, aud an Index. Second 
 Edition. By G. Pitt-Lewis, Esq., Q.C. Imperial 8 vo. 1889. 5s. 
 
 COVENANTS.— Hamilton's Law of Covenants.— A Concise Treatise 
 
 on the Law of Covenants. By G. Baldwin Hamilton, of the Inner 
 
 Temple, Esq., Barrister-at-Law. Demy 8vo. 1888. 7s. 6d. 
 
 " ^ '■ ■' written w ith clearness, intelligence, and accuracy." — Law Times. 
 
 CRIMINAL LAW.— Archbold's Pleading and Evidence in Criminal 
 
 Cases.— With the Statutes, Precedents of Indictments, &c., and the 
 
 necessary to support them. Twenty-first Edition. By 
 
 William Bruce, Esq., Stipendiary Magistrate for the Borough of 
 
 Royal l2mo. 1893. II. lis. 6d. 
 
 "The work preserves its high level of > xccllencc."— Law Times, April 29, 1893. 
 
 Clark's Analysis of Criminal Liability. By E. C. Clark, LL.D., 
 
 Barrister-at-Law. Crown Svo. 1880. 7s. M. 
 
 Mews' Digest of Cases relating to Criminal Law from 1756 to 
 
 1883, inclusive— By John Mews, assisted by C. M. Chapman, 
 
 1 1 m iv 1 1 . W. SPABHAH, and A. H. Todd, Barristers-at-Law. Royal 
 
 ■Svo. 1884. u.\s. 
 
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 CRIMINAL LAW— continued. 
 
 Roscoe's Digest of the Law of Evidence in Criminal Cases. — 
 Eleventh Edition. By Horace Smith and Gtlbebt Geoege Ken- 
 nedy, Esqrs., Metropolitan Magistrates. Demy8vo. 1890. ll.lls.6d. 
 " To the criminal lawyer it is his guide, philosopher anil friend. What Roscoe says 
 most judges will accept without question. . . . Every addition has been made necessary 
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 Russell's Treatise on Crimes and Misdemeanors.— Sixth Edi- 
 tion. By Horace Smith, Esq., Metropolitan Police Magistrate. 
 3 vols. Eoyal 8vo. {In the press.) 
 
 Shirley's Sketch of the Criminal Law.— By W. S. Shirley, Esq., 
 
 Barrister- at- Law. Second Edition. By Chables Stephen Hunter, 
 
 Esq., Barrister-at-Law. Demy 8vo. 1889. 7s. 6d. 
 
 "Asa primary introduction to Criminal Law, it will be found very acceptable to 
 
 students." — Law Students' Journal. 
 
 VJarburton.— Yide " Leading Cases." Thring.— Vide "Navy." 
 
 DECISIONS OF SIR GEORGE J ESSEL— Peter's Analysis and 
 Digest of the Decisions of Sir George Jessel ; with Notes, &c. 
 By Apsley Petre Peter, Solicitor. Derny 8vo. 1883. 16*. 
 
 DIARY.— Lawyers' Companion (The) and Diary, and London and 
 Provincial Law and Chartered Accountants' Directory for 
 1894.— For the use of the Legal Profession, Chartered Accountants, 
 Public Companies, Justices, Merchants, Estate Agents, Auctioneers, 
 &c, &c. Edited by Edwin Layman, B.A., of the Middle Temple, 
 Esq., Barrister-at-Law ; and contains Tables of Costs in the High 
 Court of Judicature and County Court, &c. ; Monthly Diary of 
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 Court; Summary of Statutes of 1893; Alphabetical Index to the 
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 Legal Time, Interest, Discount, Income, "Wages and other Tables ; 
 Probate, Legacy and Succession Duties ; and a variety of matters of 
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 and London and Country Solicitors, with date of admission and ap- 
 pointments. Published Annually. Forty-eighth Issue. {Now ready.) 
 Issued in the following forms, octavo size, strongly bound in cloth : — 
 
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 5. Whole page for each day, plain 7 6 
 
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 The Diary contains memoranda of Legal Business throughout the Year. 
 
 " Combines everything required for reference in the lawyer's office."— Law Times. 
 
 " The amount of information packed within the covers of this well-known book of 
 reference is almost incredible. In addition to the Diary, it contains nearly 800 pages 
 of closely printed matter, none of which could be omitted without, perhaps, detracting 
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 include in the Companion every item of information which the most exacting lawyer 
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 tising solicitor, who has experienced the luxury of having it at his elbow, will ever be 
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 DICTIONARY.— The Pocket Law Lexicon.— Explaining Technical 
 Words, Phrases and Maxims of the English, Scotch and Roman Law, 
 to which is added a complete List of Law Reports, with their Abbre- 
 viations. Third Edit. By Henry G. Rawson and James F. Remnant, 
 Esqrs., Barristers-at-Law. Fcap. 8vo. 1893. 6s. 6d. 
 
 "A •wonderful little legal Dictionary." — Indermaur's Law Students' Journal. 
 
 " A very handy, complete, and useful little w -ork."— Saturday Review. 
 
 Wharton's Law Lexicon. — Forming an Epitome of the Law of Eng- 
 land, and containing full Explanations of the Technical Terms and 
 Phrases thereof, both Ancient and Modern ; including the various 
 Legal Terms used in Commercial Business. Together with a Trans- 
 lation of the Latin Law Maxims and selected Titles from the Civil, 
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 Barrister-at-Law. Super-royal Svo. 1S92. 11. 18s. 
 
 " On almost every point both student and practitioner can gather information from 
 this invaluable book, -which ought to be in every lawyer's office." — Gibson's Law Notes. 
 
 " One of the first books which every articled clerk and bar student should procure." 
 — Law Students' Journal. 
 
 DIGESTS.— Campbell's Ruling Cases. — Arranged, Annotated, and 
 Edited by Robert Campbell, M.A., of Lincoln's Inn, Barrister-at- 
 Law, Advocate of the Scotch Bar, and Late Fellow of Trinity Hall, 
 Cambridge. Author of " Sale and Agency," &c. Assisted by Col- 
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 formerly Editor of the American Reports and the Albany Law 
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 {Nearly ready.) Half vellum, net, 25s. 
 
 It is intended in this Work to collect and arrange in alphabetical 
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 The Ann rican Notes, by Mr. Irving Brownk, are intended primarily 
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 eil oi rehired to : and when the Work is complete there will be a 
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 DIGESTS— continued. 
 
 Chitty's Index to all the Reported Cases decided in the. 
 
 several Courte of Equity in England, the Prfvy Council and he 
 
 House of Lords, with a selection of Irish Cases 011 or reMi™ V, ♦{. 
 
 Principles Pleading and Practice of Equ* v and Banfcn *■ f, £ 
 
 V The volumes, sold separately. xJ%2"lL* "* * 5 " 
 
 supplies, because if he doe. 2?Lffi£&g SSASi^S^ X f* 
 
 Dale and Lehmann's Digest of Oase^BSSSd, NoTFoHoted 
 
 Disapproved, Approved, Distinguished, Commented on and 
 
 17i6?o^8 C 3 6 n i S nH ered ln tHe ^ §,ish dourts f'om the Year 
 1756 to1886 inclusive, arranged according to alphabetical order of 
 then: subjects ; together with Extracts from the Judgments deuvered 
 thereon and a complete Index of the Cases, in which are Included 
 all Cases reversed from the year 1856. By Chas. Wit. MiwSnEESf 
 
 £hedat-?"lSf ' Eamsters - at - La ^- Royal 8vo. 1887. (Pub- 
 « One of the best work's of reference to be found fa, any library^ " Sf 5w ' 25 *' 
 
 where, and by what judges hey 1 „ ,' i' i" n" 1, -Mr ? n ? 2 a " 1: "" » 
 
 F.sher's Digest of the Reported Decisions of the Courts of 
 Common Law, Bankruptcy, Probate, Admiralty, and I Divorce 
 toge her with a Selection from those of the Court of Chancery 
 and Insh Courts from 1756 to 1883 inclusive. Founded on JS2K 
 
 SLda?i2°l?^ rS " at " LaW ' 7V ° 1S - E ° y - 8V °- 1884 ' ( Pub: 
 
 "To the common "lawyer it is the most useful work he can j! \ "'• 
 
 for the Years 1884-88 mclusive.-By Joux Mbwb, Bairiater-S 
 Law. RoyalSvo. 1889. (Published at 11. 11,. ML) JUtoSEnZ? $> 
 "Tins work is an indispensable companion to the new edition of < ■hit, ■ 
 which ends with 1883, and afo , I | £J "j h Vne * , V V r 7 ' 
 
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 The Annual Digest for 1889, 1890, 1891, 1892 and 893 By 
 Johw Mews, Barrister- at-Law. Royal8vo // ;' i- 
 
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 Talbot and Fort's Index of Cases Judicially noticed (1865-1890V 
 b R S £ ls ( ° T f ;dl <*« c JW m Judgments reported in the -Law 
 Reports ' "Law Journal," "Law Times," and "Weekly Re- 
 porter, from Michaelmas Term, 1865 to the end of 1S90, with the 
 
 fcl£ V hey + ^ !°r cited — B 7 Geoege John tIeeot and 
 Hugh Fobt, Barnsters-at-Law. Roral 8vo. 1891 25* 
 
 Tins is an invaluable tool for the worker amon°- cases Th« tt«t- ;„ ™*,\.i. «f " 
 
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 DISCOVERY— Sichel and Chance's Discovery.— The Law relating 
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 an Appendix of the Acts, Forms and Orders. By Walter S. Sichel, 
 andWiLLiAMCHANCE,Esqrs.,Barristers-at-Law.Demy8vo. 1883. 12s. 
 DISTRESS.— Oldham and Foster on the Law of Distress.— A 
 Treatise on the Law of Distress, with an Appendix of Forms, Table 
 of Statutes, &c. Second Edition. By Arthur Oldham and A. La 
 Teobe Foster, Esqrs., Barristers-at-Law. Demy 8vo. 1889. 18s. 
 "This is a useful book, because it embraces the whole range of the remedy by dis- 
 tress, not merely distress for rent, but also for damage feasant, tithes, poor and highway 
 rates and taxes, and many other matters." — Solicitors' Journal. 
 
 DIVORCE.— Browne and Powles' Law and Practice in Divorce 
 and Matrimonial Causes. Fifth Edition. By L. D. Powles, Esq., 
 Barrister-at-Law. Demy 8vo. 1889. II. 6s. 
 
 "The practitioner's standard work on divorce practice."— Laiv Quarterly Review. 
 
 DOGS.— Lupton's Law relating to Dogs.— By Frederick Lttpton, 
 
 Solicitor. Koyal 12mo. 1888. 5s. 
 
 " Within the pages of this work the reader will find every subject connected with the 
 
 law relating to dogs touched upon." — Law Times. 
 
 EASEMENTS.— Goddard's Treatise on the Law of Easements.— 
 
 By John Leybourn Goddard, Esq., Barrister-at-Law. Fourth 
 
 Edition. Demy 8vo. 1891. 11. Is. 
 
 "Nowhere has the subject been treated so exhaustively, and, we may add, so 
 
 scientifically, as by Mr. Goddard. We recommend it to the most careful study of the 
 
 law student, as well as to the library of the practitioner." — Law Times. 
 
 Innes' Digest of the Law of Easements. Fourth Edition. By 
 L. C. Innes, lately one of the Judges of Her Majesty's High Court 
 of Judicature, Madras. Royal 12mo. 1893. 7s. 6d. 
 
 " Constructed with considerable care and pains."— Law Journal. 
 
 EASTERN QUESTION.— Holland's European Concert in the 
 Eastern Question. — A Collection of Treaties and other Public 
 Acts. Edited, with Introductions and Notes, by T. E. Holland, 
 D.C.L. 8vo. 1885. 12s. 6d. 
 
 ECCLESIASTICAL LAW— Phillimore's Ecclesiastical Law of the 
 
 Church of England. With Supplement. By the Bight. Hon. Sir 
 
 Robert Phillimore, D.C.L. 2 vols. 8vo. 1873-76. (Published 
 
 at 3/. 7s. 6d.) Reduced to net, 11. 10s. 
 
 Whitehead. — Vide " Church Law." 
 
 ELECTION IN EQUITY.— Serrell's Equitable Doctrine of 
 Election. By George Seerell, M.A., L.L.D., Esq., Barrister-at- 
 Law. Royal 12mo. 1891. 7s. %d. 
 " The work is well executed, and will be of service to all who desire to master the 
 
 doi trine of eled ion." Law Joui rial. 
 
 ELECTIONS. Day's Election Cases in 1892 and 1893.— Being a 
 Collection of the Points of Law and Practice arising out of the 
 Parliamentary Election Petitions in those Years, together with 
 Reports of the Judgments. By S. H. Day, Esq., Barrister-at- 
 Law, Editor of " Rogers on Elections," Part II. 16th Edit. Royal 
 12mo. iv.:;. 7s. Gd. 
 
 Hedderwick's Parliamentary Election Manual : A Practical 
 Handbook on the Law and Conduct of Parliamentary Elections 
 in Great Britain and Ireland, designed for the Instruction and 
 Guidance of Candidates, Election Agents, Sub- Agents, Polling and 
 Counting Agents, Canvassers, Volunteer Assistants, and Members of 
 I'olitii al Chilis and Associations. By T. C. H. Hedderwick, Esq., 
 Barrister-at-Law. Demy 12mo. 1892. 7s. Gd. 
 
 "Clear and well arranged." — Law Quarterly Iteview. 
 
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 ELECTIONS— continued. 
 
 Rogers on Elections.— In two parts. 
 
 Parti. REGiSTRATiox,includin«rthePracticeinRegistration Appeals ; 
 
 Parliamentary, Municipal, and Local Government ; with Appendices 
 
 of Statutes, Orders in Council, and Forms. Fifteenth Edition. By 
 
 MauricePowell, Esq., Barrister-at-Law. Roval 12mo. 1890. U.ls. 
 
 " The practitioner will find within these covers everything which he can be expected 
 
 to mow, well arranged and carefully stated."— Law Times. 
 
 Part II. Elections and Petitions. Parliamentary, Municipal, and 
 Local Government, with Appendix of Statutes and Forms. Sixteenth 
 Edition. By Samuel H. Day, Esq., Barrister-at-Law. Royal 12mo. 
 1892. n ls> 
 
 "The leading book on the difficult subjects of elections and election petitions' "— 
 Law Times, April 9, 1892. 
 
 " A very satisfactory treatise on election law .... well arranged, and tersely 
 expressed." — Solicitors' Journal. 
 
 ELECTRIC LIGHTING.— Bazalgette and Humphreys. — Vide 
 "Local and Municipal Government." 
 Cunynghame's Treatise on the Law of Electric Lighting, with 
 the Acts. Rules and Orders, a Model Provisional Order, and Forms. By 
 Henry Cunynghame, Barrister-at-Law. Royal 8vo. 1883. 12s. 6d. 
 ELEMENTS OF LAW.— Markby's Elements of Law.— Fourth 
 Edition. Demy Svo. 1889. 12s. i; /. 
 
 EQUITY, and Vide CHANCERY. 
 Chitty's Index.— Vide "Digests." 
 
 Kerly's Historical Sketch of the Equitable Jurisdiction of the 
 Court of Chancery.— Being the Yorke Prize Essay for 1889. By 
 D. M. Kerly, M.A., St. John's College. Demy Svo. 1890. 12s. 6d. 
 Mews' Digest. — Vide "Digests." 
 Serrell. — Vide "Election in Equity." 
 
 Seton's Forms of Judgments and Orders in the High Court of 
 Justice and in the Court of Appeal, having especial reference to 
 the Chancery Division, with Practical Notes. Fifth Edition. By 
 Cecil C. M. Dale, Esq., Barrister-at-Law, and "W. Clowes, Esq., 
 a Registrar of the Supreme Court of Judicature. In 3 vols. Royal 
 8vo. 1891—3. 6/. 
 
 %* The Volumes sold separately, 2/. each. 
 "A monument of learned and laborious accuracy."—'/," 'view. 
 
 " ~We have no fault to find with the treatment of either & a in its new guise 
 
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 book of forms of judgment which is known on the north side of the Strand."— LawTimes. 
 Smith's Manual of Equity Jurisprudence.— A Manual of Equity 
 Jurisprudence for Practitioners and Students, founded on the Works 
 of Story, Spence, and other winters, comprising the Fundamental 
 Principles and the points of Equity usually occurring in General 
 Practice. By Josiah W. Smith, Q.C. Fourteenth Edition. Bv J. 
 Trustram, LL.M., Esq., Barrister-at-Law. 12mo. 1889. 12s. 6d. 
 " Still holds its own as the most popular first book of equity jurisprudence, and one 
 which every student must of necessity read." — .'. 
 
 Smith's Practical Exposition of the Principles of Equity, illus- 
 trated by the Leading Decisions thereon. For the use of Students 
 and Practitioners. Second Edition. By H. Arthur Smith, M.A., 
 LL.B., Esq., Barrister-at-Law. Demy Svo. 1888. 21s. 
 
 " This excellent practical exposition of the principles of equity is a work one can 
 well recommend to students either for the bar or the examinations of the Incorporated 
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 tains a mass of information well arranged, and is illustrated by all the leading deci- 
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 14 STEVENS AND SONS, LIMITED, 
 
 ESTOPPEL.— Everest and Strode's Law of Estoppel. By Lancelot 
 
 Fielding Everest, and Edmund Strode, Esqrs., Barristers-at-Law. 
 Demy Svo. 1884. 18i - 
 
 " A useful repository of the case law on the suhject."— Law Journal. 
 EXAMINATION GUIDES.— Bedford's Digest of the Preliminary 
 Examination Questions in Latin Grammar, Arithmetic, French 
 Grammar, History and Geography, with the Answers. Second 
 Edition. Demy Svo. 1882. .18s. 
 
 Haynes and Nelham's Honours Examination Digest, comprising 
 all the Questions in Conveyancing, Equity, Common Law, Bank- 
 ruptcy, Probate, Divorce, Admiralty, and Ecclesiastical Law and 
 Practice asked at the Solicitors' Honours Examinations, with Answers 
 thereto. By John F. Haynes, LL.D., and Thomas A. Nelham, 
 Solicitor (Honours). Demy Svo. 1883. 15 s - 
 
 " Students going in for honours will find this one to their advantage."— Law Times. 
 
 Napier & Stephenson's Digest of the Subjects of Probate, 
 Divorce Bankruptcy, Admiralty, Ecclesiastical and Criminal 
 Law necessary to be known for the Final Examination, clone into 
 Questions and Answers. With a Preliminary Chapter on a Course of 
 Study for the above Subjects. By T. Bateman Napier and Richard 
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 Napier & Stephenson's Digest of the Leading Points in the Sub- 
 ject of Criminal Law necessary to be knownfor Bar and University 
 Law Examinations. Done into Questions and Answers. By T. 
 Bateman Napier and Richard M. Stephenson, Esqrs., Barristers- 
 at-Law. Demy 8vo. 1888. 5*- 
 
 Shearwood's Guide for Candidates for the Professions of 
 Barrister and Solicitor.— Second Edition. By Joseph A. Shear- 
 wood, Esq., Barrister-at-Law. Demy 8vo. 1887. 6s. 
 
 " A practical little hook for students. "—Law Quarterly Review. 
 
 Uttley's How to Become a Solicitor; or, Hints for Articled 
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 the Examinations, obtaining Admission, taking out Certificate to 
 Practise ; Hints on Reading, Tables of Cases, Statutes and Books ; 
 Articled Clerks in the Law Courts : Notes of recent Cases affecting 
 them ; with Appendix, comprising many useful Forms and all the 
 Questions se1 a1 .ill the Examinations of 1893. By T. F. Uttley, 
 Solicitor. Royall2mo. 1894. 5«- 
 
 EXECUTIONS.— Edwards' Law of Execution upon Judgments 
 
 and Orders of the Chancery and Queen's Bench Divisions 
 
 of the High Court of Justice.— By C. Johnston Edwards, Esq., 
 
 Barrister-at-Law. Demy 8vo. 1888. 16s. 
 
 " Very useful, especially to solicitors. ... In addition to the other good points in this 
 
 hook, it' contains a copious collection of forms and a good index."— Solicitors' Journal. 
 
 EXECUTORS,- Macaskie's Treatise on the Law of Executors 
 and Administrators, and of the Administration of the Estates of 
 Deceased Persons. With an Appendix of Statutes and Forms. By 
 S. 0. Maoabkee, Esq., Barrister-at-Law. 8vo. 1881. 10s. 6d. 
 
 Williams' Law of Executors and Administrators.— Ninth Edition. 
 By the Eon. Sir Roland Vauoiian Williams, a Justice of the High 
 Court. 2 rols. Roy. 8vo. L893. 3Z. 16s. 
 
 ""We I hi a " i il "'cm ly gaj thai the present edition will not only sustain, but 
 enhance the high reputation which t lie hook has always enjoyed. The want of a new 
 edition ha been distinctly fell for Borne time, and in this work, and in this work only, 
 will the practitioner now find the entire law relating; to executors and administrators 
 
 I IM ,,, , v'h.m tive and anile. i iiatiye Cm -.hi m, and thoroughly brought down to 
 
 the present date." I < •' ■ Di c. 9, L898. 
 
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 119 & 120, CHANCERY LANE, LONDON, W.C. 15 
 
 EXTRADITION. — Kirchner's L'Extradition. — Recuoil Renf ermant in 
 Extcnso tous les Traites oonclus jusqu'au ler Janvier, 1S83, entre les 
 Nations civilisees, et donnant la solution precise des difficultes qui 
 peuvent surgir dans leur application. Avec une Preface de M e 
 Georges Lachatjd, Avocat a. la Cour d'Appel de Paris. Publie sous 
 les auspices de M. C. E. Howard Vincent, Directeur des Affaires 
 Criminelles de la Police Metropolitaine de Londres. Par F. J. 
 Kirchner, Attache a. la Direction des Affaires Criminelles. In 1 
 vol. (1150 pp.). Royal 8vo. 1883. 11.1s. 
 
 FARM, LAW OF. — Dixon's Law of the Farm: including the Cases 
 and Statutes relating to the subject ; and the Agricultural Customs 
 of England and Wales ; together with the Small Holdings Act, 1892. 
 Fifth Edition. By Aubrey J. Spencer, Esq., Barrister-at-Law. 
 Demy 8vo. 1892. 26s. 
 
 " The book is well and carefully edited." — Law Journal. 
 
 " A complete modern compendium on agricultural matters." — Law Times. 
 
 FIXTURES. — Amos and Ferard on the Law of Fixtures and other 
 Property partaking both of a Real and Personal Nature. Third 
 Edition. By C. A. Ferard and W. Howland Roberts, Esqrs., Bar- 
 risters- at- Law. Demy 8vo. 1883. 18s. 
 "An accurate and well written work." — Saturday Review. 
 FORMS.— Archibald.— Vide " Chamber Practice." 
 Bullen and Leake, — Vide "Pleading." 
 
 Chitty's Forms of Practical Proceedings in the Queen's Bench 
 Division ofthe High Court of Justice. Twelfth Edition. By T. 
 W. Chitty, Esq., Barrister-at-Law. Demy 8vo. 1883. 
 
 (Published at 11. 18s.) Reduced to net 20s. 
 " Brief and clear, and the notes accurate and to the point." — Law Journal. 
 
 Daniell's Forms and Precedents of Proceedings in the Chan- 
 cery Division of the High Court of Justice and on Appeal 
 therefrom. — Fourth Edition, with Summaries of the Rules of the 
 Supreme Court, Practical Notes and References to the Sixth Edition 
 of "Daniell's Chancery Practice." By Charles Burney, B.A. (Oxon.), 
 a Chief Clerk of the Hon. Mr. Justice Chitty. Royal 8vo. 1885. 11. 10s. 
 
 " The standard work on Chancery Procedure." — Law Quarterly Review. 
 
 FRAUD AND MISREPRESENTATION.— Moncreiff's Treatise 
 
 on the Law relating to Fraud and Misrepresentation.— By 
 
 the Hon. F. Moncreiff, Barrister-at-Law. 8vo. 1891. 21s. 
 
 "The task which Mr. Moncreiff has undertaken has been handled carefully and 
 
 with considerable ability, and the work will well repay perusal."— Solicitors' Journal.', 
 
 GOODWILL.— Allan's Law relating to Goodwill.— By Charles E. 
 
 Allan,M.A.,LL.B., Esq., Barrister-at-Law. DemySvo. 1889. 7s. Gd. 
 
 " A work of much value." — Solicitors' Journal. 
 
 HIGHWAYS.— Bazalgette and Humphreys.— ride "Local and 
 
 Municipal Government." 
 
 Chambers' Law relating to Highways and Bridges, being the 
 
 Statutes in full and brief Notes of 700 Leading Cases. By George 
 
 F. Chambers, Esq., Barrister-at-Law. 1878. 7s. 6d. 
 
 HOUSE OF LORDS SCOTCH APPEALS.— Paterson's Reports 
 of Scotch Appeals in the House of Lords, a.d. T851 to 1873. 
 —By J. Paterson, Barrister-at-Law. 2 vols. Roy. Svo. 1S79. 5/.5s. 
 
 HOUSE TAX.— Ellis' Guide to the House Tax Acts, for the use of 
 
 the Payer of Inhabited House Duty in England.— By Arthur 
 
 M.Ellis, LL.B. (Lond.), Solicitor, Author of "A Guide to the 
 
 Income Tax Acts." Royal 12mo. 1885. 6s. 
 
 " We have found the information accurate, complete and very clearly expressed."— 
 
 Solicitors' Journal. 
 
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 16 STEVENS AND SONS, LIMITED, 
 
 HUSBAND AND WIFE.— Lush's Law of Husband and Wife; 
 
 •within the Jurisdiction of the Queen's Bench and Chancery Divisions. 
 
 By C. MoSTAGUE Lrsn. Esq., Barrister-at-Law. Svo. 1884. 20*. 
 
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